March 30, 2006, Introduced by Reps. Amos, Taub, Robertson, Gosselin, Farhat, Booher, LaJoy, Elsenheimer, Pastor, Palsrok, Stakoe, Hildenbrand, Moore, Wenke, Stahl, Nofs, Stewart, Newell, Brandenburg, Caswell, Hummel, Kahn, David Law, Mortimer, Ball, Schuitmaker, Drolet, Palmer, Huizenga, Hoogendyk, Ward, Jones, Green, Caul, Baxter, Marleau, Pavlov, Vander Veen, Garfield, Kooiman, Acciavatti and Moolenaar and referred to the Committee on Commerce.
A bill to amend 1969 PA 306, entitled
"Administrative procedures act of 1969,"
by amending sections 28, 81, 85, 86, and 106 (MCL 24.228, 24.281,
24.285, 24.286, and 24.306), section 28 as amended by 2004 PA 23
and section 85 as amended by 1993 PA 83, and by adding section 107.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 28. (1) Before the adoption of a standard form contract
that would have been considered a rule but for the exemption from
rule-making under section 7(p) or a policy exempt from rule-making
under section 7(q), an agency shall give electronic notice of the
proposed standard form contract or policy to the committee and the
state
office of regulatory reform administrative hearings and
rules. The committee shall provide an electronic copy of the notice
not later than the next business day after receipt of the
electronic notice from the agency to members of the committee and
to members of the standing committees of the senate and house of
representatives that deal with the subject matter of the proposed
standard form contract or policy.
(2) The electronic notice required by subsection (1) shall
include all of the following:
(a) A statement of the terms of substance of the proposed
standard form contract or policy, a description of the subjects and
issues involved, and the proposed effective date of the standard
form contract or policy.
(b) A statement that the addressee may express any views or
arguments regarding the proposed standard form contract or policy
or the standard form contract's or policy's effect on a person.
(c) The address to which comments may be sent and the date by
which the comments shall be mailed or electronically transmitted,
which date shall not be less than 35 days from the date of the
mailing or electronic transmittal of the notice.
(d) A reference to the specific statutory provision under
which the standard form contract or policy is issued.
(e) A regulatory impact statement addressing the items
described in section 45(3).
(3) If the value of a proposed standard form contract exempt
from rule-making under section 7(p) is $10,000,000.00 or more, the
electronic notice required under subsection (1) shall include an
electronic copy of the proposed standard form contract. If the
value of the proposed standard form contract exempt from rule-
making under section 7(p) is less than $10,000,000.00, the agency
shall provide an electronic or paper copy of the proposed standard
form contract or policy to any legislator requesting a copy.
Sec. 81. (1) When the official or a majority of the officials
of the agency who are to make a final decision have not heard a
contested case or read the record, the decision, if adverse to a
party to the proceeding other than the agency itself, shall not be
made until a proposal for decision is served on the parties, and an
opportunity is given to each party adversely affected to file
exceptions and present written arguments to the officials who are
to make the decision. Oral argument may be permitted with consent
of the agency.
(2) The proposal for decision shall contain a statement of the
reasons therefor and of each issue of fact and law necessary to the
proposed decision, prepared by a person who conducted the hearing
or who has read the record.
(3) The decision, without further proceedings, shall become
the final decision of the agency in the absence of the filing of
exceptions or review by action of the agency within the time
provided by rule or 30 days after the hearing is completed and
otherwise in compliance with the prescriptions of subsections (4)
and (5). An agency or the hearing officer may exceed the time
period described in this subsection upon a presentation on the
record of extraordinary circumstances.
(4) Once the proposal for decision is completed, the agency
has not more than 30 days to make its final decision or order.
(5) If the agency distinguishes certain prior agency decisions
in identical or substantially similar subject matter areas, a
factual and legal basis shall be presented.
(6) If the agency does not comply with the time periods
described in subsections (3) and (4), the agency is considered in
default. Under such circumstances, the agency shall enter a
judgment in favor of the respondent. The only exceptions to the
time periods concerning entry of judgments in favor of the
respondents are waiver by the respondent or agreement of all the
parties affected by the proposal for decision, or both.
(7) On 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.
(8) (4)
The parties, by written stipulation or at the
hearing, may waive compliance with this section.
(9) If an agency enters a final decision and, upon judicial
review, that agency decision is overturned or reversed because it
is not supported by statute or rule, the court shall award related
litigation costs and attorney fees to the litigants who prevail in
obtaining relief from that agency decision.
Sec. 85. (1) A final decision or order of an agency in a
contested
case shall be made, within a reasonable period the time
period prescribed by section 81, in writing or stated in the record
and shall include findings of fact and conclusions of law separated
into sections captioned or entitled "findings of fact" and
"conclusions of law", respectively.
(2) Findings of fact shall be based exclusively on the
evidence and on matters officially noticed. Findings of fact, if
set forth in statutory language, shall be accompanied by a concise
and explicit statement of the underlying facts supporting them. If
a party submits proposed findings of fact that would control the
decision or order, the decision or order shall include a ruling
upon each proposed finding.
(3) Each conclusion of law shall be supported by authority or
reasoned opinion. A decision or order shall not be made except upon
consideration of the record as a whole or a portion of the record
as may be cited by any party to the proceeding and as supported by
and in accordance with the competent, material, and substantial
evidence.
(4) A copy of the decision or order shall be delivered or
mailed immediately to each party and to his or her attorney of
record.
Sec. 86. (1) An agency shall prepare an official record of a
hearing which shall include:
(a) Notices, pleadings, motions, and intermediate rulings.
(b) Questions and offers of proof, objections and rulings
thereon.
(c) Evidence presented.
(d) Matters officially noticed, except matters so obvious that
a statement of them would serve no useful purpose.
(e) Proposed findings and exceptions.
(f) Any decision, opinion, order, or report by the officer
presiding at the hearing and by the agency.
(g) Any entry of judgment for a respondent.
(2) Oral proceedings at which evidence is presented shall be
recorded, but need not be transcribed unless requested by a party
who shall pay for the transcription of the portion requested except
as otherwise provided by law.
Sec. 106. (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. A court shall reverse and set aside an agency
decision where it is made upon an unlawful procedure or did not
conform its procedures to the requirements of law including the
requirements of this act, unless the agency can demonstrate by a
preponderance of evidence that the failure to conform to the
procedure required by law did not prejudice the rights of any party
to the proceeding.
(d) Not supported by competent, material, and substantial
evidence on the whole record. In determining whether an agency
decision is supported by competent, material, and substantial
evidence on the record, the court shall do the following:
(i) Examine the agency's findings of fact to determine whether
each finding of fact at issue before the court is supported by
evidence in the record or reasonable inferences from identified
testimony or exhibits.
(ii) Review the evidence cited by the aggrieved person with
respect to each such finding of fact.
(e) Arbitrary, capricious, or clearly an abuse or unwarranted
exercise of discretion. In determining whether an agency has acted
arbitrarily or capriciously or abused its discretion, a court shall
determine whether the agency's decision is reasonable, measured,
and proportionate. In determining whether an agency's decision is
reasonable, measured, and proportionate, the court shall determine
whether the agency articulated a satisfactory explanation for its
action, including a rational connection between the facts found,
the choices available to the agency, and the choice made.
(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 determining whether to reverse a decision or order or whether to
remand a case for further proceedings, the court shall consider and
give weight to the following:
(a) The nature and extent of any violations of the aggrieved
person's procedural rights under the constitution or statutes,
including this act.
(b) The reasonably likely fees and costs that the aggrieved
person has incurred in proceedings before the agency to date.
(c) The reasonably likely fees and costs that will be borne in
further proceedings.
(d) The amount at stake and the public interest in the
proceedings.
Sec. 107. In reviewing rules, bulletins, guidelines,
interpretive statements, declaratory rulings, forms with
instructions, findings, rulings, and orders, the courts shall
determine whether in promulgating rules or issuing the bulletins,
guidelines, interpretive statements, and forms with instructions or
in making such findings, rulings, and orders the agency effectuated
the object of this section to require agencies to give due
consideration to reducing the adverse impact of its orders,
bulletins, guidelines, interpretive statements, declaratory
rulings, and forms with instructions on small businesses with the
objective of encouraging and fostering the growth of small
businesses in this state and the elimination of unnecessary
regulatory burdens on small businesses of this state.