b. Michigan Supreme Court case law regarding agency action on ambiguous statues

As a primary matter, in order for the standard-of-review issue to arrive, a statute must be ambiguous. This Court recently indicated that "a provision of the law is ambiguous only if it ‘irreconcilably conflict[s]' with another provision or when it is equally susceptible to more than a single meaning." Fluor Enter, Inc v Revenue Div, Dep't of Treasury, 477 Mich 170, 177 n. 3 (2007).

Where there is ambiguity, this Court has not clearly set forth a single standard of review. For instance in In re MCI Telecommunications Complaint, 460 Mich 396 (1999), this Court stated:

    We acknowledge that our past case law has not been entirely consistent regarding the subject of the amount of deference to be given when an administrative agency with expertise in its field construes a statute governing the area regulated by the agency. The unique facts of this case, involving a protracted period of litigation, during which statutes were both enacted and repealed, makes [sic] this case poorly suited to resolve such inconsistencies. Accordingly, we express no view on such matters, leaving their resolution for another day.

Id. at 424 n. 4.

Since this Court's admission, there have been only three cases that have touched upon the matter of deference to an agency.

In her dissent in Fluor, a case involving a formal adjudication, Justice Kelly, joined by Justice Cavanagh and Justice Weaver, indicated that a provision of the Single Business Tax was ambiguous. She deferred to the agency's interpretation of the statute by giving the agency's interpretation "weight." Fluor, 477 Mich at 190 (Kelly, J., dissenting).

In Koontz v Ameritech Services, Inc, 466 Mich 304 (2002), Justice Corrigan, joined by Justice Weaver, Chief Justice Taylor, and Justice Young, indicated that "this Court generally accords due deference to an administrative agency charged with executing a particular statute." Id. at 323-24. But there was no discussion of what constitutes "due deference," since the statute was unambiguous.

In In re Brown, 461 Mich 1291 (1999), this Court remanded a case to the Judicial Tenure Commission (JTC) and ordered that body to create standards for judicial discipline. This Court indicated that the JTC "is entitled, on the basis of its expertise, to deference both with respect to its findings of fact and its recommendation of sanction." Id. at 1292. But that deference would occur only once "standards have been promulgated and reasonably followed." Id. What standard of review would then apply was not discussed.

Even if this Court were to consider allowing Chevron deference where a rule has been made through notice-and-comment rulemaking - which is not an issue in this case, since the proposed "rule" in question is from a formal adjudication - In re Brown would support a holding of not extending that deference to a formal adjudication. In re Brown evidences a concern about the arbitrary decisions that would be possible if this Court were to defer to agency ad-hoc rulemaking through litigation.

Just nine days prior to the MCI ruling mentioned earlier, this Court decided Consumers Power Co v Public Service Commission, 460 Mich 148 (1999), which involved a formal adjudication. Justice Corrigan wrote the majority opinion and stated that while "this Court ordinarily accords an agency's longstanding interpretation of a statute due deference," no deference was necessary, because the statute was unambiguous. Id. at 157 n. 8.

Justice Brickley, joined by Justice Cavanagh and Justice Kelly, dissented. Because he believed the statute was ambiguous, he addressed the standard of review. After noting that this Court's jurisprudence on this issue has not been a model of clarity, he recommended Chevron-type deference:

    The Legislature's ability to delegate authority to an agency is bounded only by the constitution, and there is no allegation of unconstitutional delegation of legislative authority in this case. Therefore, given that the relevant statutory language is ambiguous, that there is no clear indication of the Legislature's intent, and that the PSC exercises some of the Legislature's policy-making authority in this area, this Court should avoid striking down the policy decision inherent in the PSC's permissible interpretation of the electric transmission act.

    . . .

    . . . [B]ecause of a lack of reliable guideposts in determining legislative intent in this case, I would adopt a rule that this Court defer to an agency's permissible, policy-based interpretation of the statutes that it administers.

Id. at 176-77 (citation omitted).

As noted above, however, differences between Michigan administrative law and federal administrative law should prevent the adoption of a Chevron-type standard here.