Michigan Chiropractic Council v. Commissioner of the Office of Financial & Insurance Services

v Ins Comm’r Council CHIROPRACTICCOUNCIL MICHIGAN OF FINANCIAL THE OFFICE OF COMMISSIONER SERVICES AND INSURANCE 6). (Calendar 8, 2005 126530, 126531.Argued No. November Docket Nos. Rehearing denied 477 Mich 1207. 2006. Decided June Michigan Chiropractic Michigan Chiropractic and the Council The judicial Ingham Society petitioned Circuit Court for review of Financial and of the Office decision of the Commissioner challenge petitioners’ rejecting Insurance Services provider organization preferred approval aof commissioner’s (PPO) insurance in no-fault automobile endorsement offered Mid-Century Exchange Insur- policies and of Farmers Insurance permitted policyholders Company. The PPO endorsement ance injury protection receiving personal option in their a reduction (PIP) exchange agreeing premium to obtain medical treat- for exclusively providers PPO in the insurers’ network. ment from petitioners PPO endorsement constituted contended that the The misleading unfair, deceptive, practice trade and violated an Brown, J., court, Thomas L. insurance act. The circuit no-fault respondents as and concluded the insurers to intervene allowed inherently with the no-fault endorsement conflicted that the PPO system by implementing a a fee-for-service insurance scheme of policyholders managed system choice had in that limited the care basis, court re- obtaining On that the circuit medical services. respondent permit decision to versed the commissioner’s usage The commis- PPO endorsement. insurers’ of the no-fault appealed respondent the Court of insurers sioner and the appeals The Court Appeals separately, consolidated. and the were JJ., Fitzgerald, RJ., Appeals, Neff and affirmed White, App 228 The judgment of the circuit court. application granted for leave to Supreme the insurers’ Court petitioners directing parties whether the appeal, to address challenge on behalf of the the PPO endorsement had (count chiropractic petition) and the appellants’ insureds I of the (count petition). providers 472 Mich 899 II of the Supreme separate opinions, Court held-. In petitioners satisfy The third-party standing do not the test for (count litigate appellants’ not the claims of the insureds I). (count II) allegation of a violation of MCL 500.3157 is not ripe judgments review.The of the circuit court and the Appeals Court of must be vacated and the decision of the Commis- sioner of the Office of Financial and Insurance Services must be reinstated. Michigan Supreme The courts, Court and the federal to make judiciary certain usurp power that the does not the of coordinate government only “judicial branches of and power,” exercises the developedjusticiability have doctrines to ensure that cases before appropriate judicial the courts are action. These include the standing, ripeness, doctrines of and mootness. These doctrines are jurisdictional may any in time, nature and be raised at even sua sponte, may parties. and not be waived the The

justiciability judiciary’s jurisdiction concern the constitutional adjudicate involving genuine controversy. cases a erroneously Where a lower court has exercised its power, appellate jurisdiction an appeal, court has on not of the merits, merely purpose correcting but for the the error of the entertaining lower court in the suit. litigant generally may A rights not vindicate the of another. However, litigant (1) rights assert the of another where the (2) litigant standing, litigant establishes the has a close relation- ship person possesses right sought with the asserted, who the to be (3) litigant and the establishes that there is a hindrance to that person’s ability protect his or her own interests. To establish (1) standing plaintiff plaintiff must show that the has suffered a (2) fact, injury concrete in the existence of a causal connection injury between the complained and fairly conduct of that (3) challenged traceable to defendant, the action of the and injury likely will be redressed a favorable decision. In this case, any there is no evidence that prevents obstacle or hindrance appellants’ protecting insureds from their own interests through litigation. joined by Justice Chief Justice and Justice Young, Taylor reasoning regard stated the and the result with to the Corrigan, concerning Court’s regard determination II, count I. With to count allegation 500.3157, of a violation of MCL which concerns charges services, assuming for medical petitioners that the have standing, they failed to show that of their members have experienced injury an actual inadequate in the form of reimburse- appellants’ policy ment as a Therefore, result of the endorsement. allegation ripe in count II is not for review and is not v Ins Comm’r Council judgments justiciable. and the Court of The of the circuit court Appeals decision should should be vacated and the administrative be reinstated. only, concurring in result stated that Michi- Justice Kelly,

gan’s standing requirements Lee v Macomb Co Bd before (2001), sufficient, require- Comm’rs, Mich 726 were that Lee’s Michigan injury support particularized in the ment of a has no Constitution, wrongly and that Lee blocks access to our state courts. dissenting concurring only and in Justice in the result Weaver, reasoning analysis

part, disagreement her with the stated majority mistakenly prudential doctrines transforms the ripeness constitutionally into based doctrines that of mootness and jurisdiction Supreme Court. affect the Cavanagh, concurring part in of the result and dissent- Justice majority ing part, only the result reached concurred with I, majority’s regard to count and dissented from the decision with petitioner’s regarding not to reach the merits of the claim count II. petitioners’ allegations are sufficient to confer on pursue regarding claim II. them to count concurring part dissenting part, Justice Markman, analysis respect concurred in the and the reached to result with (count I), concerning rights the claim the of the insureds but disagreed justiciability analysis traditionally applied that the inquires concerning “judicial power” the is neces- the exercise of sarily dispose respect questions presented sufficient to of the with (count II). concerning rights providers to the claim the concerning Because a number constitutional exist process, they must be review of the administrative and because case, proper parties resolved for a determination of this should supplemental directed to file briefs on these issues. be judgments vacated; Appeals Circuit court and Court of admin- reinstated. istrative decision Standing. — — Actions Third Parties litigant generally may rights person of another A not vindicate the (1) rights person litigant of that but vindicate where (2) standing, relationship person, a establishes has close with (3) person’s ability establishes that there is a hindrance to that interests; standing protect is his or her own established (1) fact, showing plaintiff injury in has suffered a concrete (2) injury and conduct there is a causal connection between the

Opinion by Young, J. complained fairly challenged of that traceable action of (3) defendant, injury likely will be redressed favorable decision. Stone,

Miller Paddock & (by PLC Kevin J. Canfield Moody and Jaclyn Levine), Shoshana Michigan for Chiropractic Council and Michigan Chiropractic Soci- ety.

Warner Norcross & (by Judd LLP Jeffrey O. Birkhold, Cobb) A. Joseph Kuiper, and D. Ryan for Farmers Insurance Exchange and Mid-Century Insur- ance Company.

Amici Curiae:

Kerr, Weber, Russell and Schulte, PLC (by Daniel J. Joanne Geha Swanson, and Michael A. Sneyd), for Michigan State Medical Society. Coté, &

Willingham (by PC. John A. Yeager,Matthew K. Payok, Letter), and Leon J. for Insurance Institute of Michigan.

Hertz, Schram & Saretsky, (by PC. Robert P. Getter and William Adams), D. PPOM, L.L.C.

Sinas, Dramis, Brake, & Boughton McIntyre, (by P.C. Sinas, George T. Page Graves, L. and Steven Hicks), A. (CPAN). for Coalition Protecting Auto No-Fault YOUNG, Petitioners, two organizations representing the interests of Michigan chiropractors, challenged the validity the “Preferred Provider Option” offered appellants to their policyholders. In count I of their petition, petitioners claimed that option violated the rights of the appellants’ insureds. In count II of their petition, petitioners claimed a violation of rights chiropractic providers. I, Regarding count hold we that Council v Ins Comm’r Young, J. standing, third-party for satisfy not the test petitioners do insureds. litigate appellants’ the claims and not II, assuming arguendo petitioners Regarding count membership, on behalf of their standing to sue have an actual or imminent have not established petitioners ripe not Thus, claim is injury. petitioners’ circuit Therefore, judgments we vacate review. the decision and reinstate Appeals court and the Court Financial and Insur- of the Office of of the Commissioner Commissioner).1 (the ance Services I. PROCEDURAL HISTORY FACTS AND a “Preferred Provider The offer appellant-insurers (PPO) to their no-fault automobile insurance Option” their insureds to elect to limit allowing policyholders, providers they medical care the event their choice (PIP) benefits. In injury protection require personal agree PIP insureds exchange premiums, for reduced treatment from a network of medical care receive of Michi- maintained Preferred Providers providers (PPOM). In a seeks gan policyholder the event network, the PPOM provider treatment from a outside deductible, reim- pay provider the insured must customary is limited to PPOM’s reimburse- bursement entirely The “Preferred Option” ment rate. Provider opt if do not for the endorse- voluntary; policyholders ment, they premium do not receive the discount and are providers. limited to the PPOM network of not discounted began offering policy op- Appellants August petitioners 2000.2 In filed July tion ripeness, dispose of this case on the basis of Because we appellants’ appeal. do not address the substantive merits we approved policy option after the Commissioner failed was deemed days approval submitted for to act after the endorsement was within 500.2236(1). pursuant to MCL 475 MICH363 by Opinion Young, J. with the for a

request Commissioner contested case hearing pursuant 500.2029, to MCL 500.2028 and MCL claiming that the PPO endorsement violated the Insur- Code, ance seq. MCL 500.100 et Petitioners asked Commissioner to withdraw approval of the endorse- 500.2236(5) pursuant ment to MCL and to issue a cease and desist order to respondents.3

The Commissioner sought additional information from respondents petitioners, which petitioners refused to supply. established, On the basis of the record rejected Commissioner petitioners’ request for a contested case hearing. The Commissioner concluded that the endorsement did act, not violate the no-fault MCL 500.3101 et seq. appealed Petitioners to the circuit court, which reversed the decision of the Commissioner and held that the “Preferred Provider Option” was not by authorized law. Appeals Court of affirmed the circuit court

judgment, holding that respondents’ PPO endorsement was inconsistent with the no-fault act and that authority to issue the endorsement must emanate from Legislature.4 petition counts; however, Petitioners’ amended only contained four appeal. noted, two counts referenced above are relevant to this As alleged rights count I that the endorsement violated the of insureds and alleged II rights count chiropractic the endorsement violated the providers. alleged Count III imposed the $500 deductible when a policyholder sought provider pen treatment from a nonnetwork was a alty, “potentially imposes hardship which a tremendous on insureds.” However, following by Commissioner, petitioners an adverse decision did not seek challenged review of count III in the circuit court. Count IV appellants’ pay chiropractic allegedly refusal care in favor of comparable provided osteopathic physicians. issue, care This which Commissioner, petitioners’ was not addressed was resolved Sprague Exch, App 260; favor in v Farmers Ins 650 NW2d 374 (2002), lv den 469 Mich 914 App 228; v Ins Comm’r Council Young, appeal, directing parties leave to granted

We among petitioners the issues briefed whether address Op- the Preferred Provider standing challenge had appellants’ chiropractic tion on behalf of insureds providers.5

II. OF STANDARD REVIEW question has is a of law party Whether Moreover, questions justi- that we review de novo.6 ciability separation powers constitutional of implicate are likewise re- principles.7 Constitutional de novo.8 viewed

III. ANALYSIS a. JUSTICIABILITY tripartite system government Our of is constitution- ally established in both our state and federal constitu- Const, III, § art 1 upon only tions. US confers the courts Const, III, 2 “judicial power”; § US art limits the judicial power “[c]ases” “[c]ontroversies.” Simi- larly, constitution, 3, 2,§ our state art Const provides: powers government

The are divided into three legislative, judicial. person branches: executive and No exercising powers powers of one branch shall exercise properly belonging except expressly to another branch as provided in this constitution. 5 (2005). 6 Co, Nat’l v Cleveland Iron Federation 471 Mich 608; Wildlife Cliffs Service, Dep’t Civil (2004); 466 Mich 250; Crawford of Comm’rs, Lee v Macomb Co Bd (2002); 629 NW2d

NW2d 900 Lee, Wildlife, supra; supra. Nat’l Hathcock, Wayne Co v NW2d 475 MICH363 Young, powers

The of each in Michigan branch are outlined the Constitution, which the assigns Legislature the task of exercising “legislative the power,”9 Governor the of exercising task the “executive power,”10 and the judiciary the exercising task of the “judicial power.”* In Nat’l Wildlife, this Court described and defined the Court’s constitutionally assigned “judicial power”: “judicial power” traditionally has been defined

combination of considerations: the existence of a real dispute, controversy; or case or deciding avoidance of hypothetical questions; plaintiff has who suffered real harm; genuinely the existence parties; adverse ripeness maturity case; sufficient eschewing of a any stage cases that are moot litigation; at of their ability proper to issue party; forms effective relief to a political questions non-justiciable avoidance of or other controversies; the unnecessary avoidance of constitutional issues; emphasis upon and the proscriptive opposed as prescriptive making. [471 decision 614-615.] Mich In seeking to make certain that the judiciary does not usurp power of coordinate branches of government, only “judicial exercises power,” both this Court and the federal courts have developed justiciability doctrines to ensure that cases before the courts are appropriate judicial action.12These include the doctrines of stand- 9 1963, 4, § Const art 1. 10 1963, 5, § Const art 1. 11 1963, 6, § Anway Const art 1. As Rapids this Court noted in v Grand Co, 592, 598; (1920), R 211 “By Mich 179 NW 350 the Constitution the judicial power was vested the courts and it was vested in no other department government. To the courts was committed added.) power (Emphasis and no other.” 12 “ ‘ Justiciability standing, “mootness, ripeness, doctrines such as political question, part, and though the like—relate in and different overlapping ways, idea, to an which is more than an intuition but less rigorous explicit theory, than a and pruden about the constitutional and powers unelected, unrepresentative judiciary tial limits to the of an in our v Council Ins Comm’r 371 Young, J. ing,13ripeness,14 and mootness.15

Federal held that courts have doctrines such as and are and constitutionally mootness derived nature, jurisdictional satisfy because failure to their implicates authority elements the court’s constitutional only “judicial power” adjudicate only to exercise and actual cases or controversies.16 Because these doctrines ’ ” government.” Co, kind of Travelers Ins Co v Detroit Edison 465 Mich 185, 196; (2001), quoting Wright, 737, 750; Allen v 468 US 3315; (1984), O’Neill, quoting Jagt L 104 S Ct 82 Ed 2d 556 Vander v 226 (1983) 14, 26-27; (Bork, J., App concurring). US DC 699 F2d 1166 standing requires party’s The doctrine of “the existence of a interest litigation vigorous in the outcome of that will ensure sincere and Bd, advocacy.” Speaker 547, 554; v House State Admin (1993). standing, plaintiff NW2d 539 In order to establish must (1) plaintiff establish three elements: that the has suffered a concrete ‘“ ’ (2) “injury ”; in fact” the existence of a causal connection between “ ‘ injury complained “fairly tracetable] conduct of that is . .. ’ (3) challenged ”; injury action of the defendant” that the will ‘“ ’ ” likely Lee, supra 739, be “redressed a favorable decision.” at Lujan quoting Wildlife, 555, 560-561; v 504 US 112 S Ct Defenders of (1992) (citations omitted). 2130; 119 L Ed 2d 351 14Ripeness prevents adjudication hypothetical contingent injury ripe claims before an actual has been sustained. A claim if is not it “ upon ‘contingent may anticipated, rests future events that not occur as ” Agricultural or indeed not occur at all.’ Thomas v Union Carbide (1985) Co, 568, 580-581; 3325; Products 473 US 105 S Ct 87 L Ed 2d 409 (citation omitted). Dep’t Baptist See also Social Services v Emmanuel (1990). Preschool, 380; Mich 455 NW2d precludes adjudication Mootness of a claim where the actual “ controversy exists, longer presented no such as where ‘the issues are no longer parties legally cognizable “live” or the lack a interest in the ” Angeles Davis, 625, 631; 1379; outcome.’ Los Co v 440 US 99 S Ct 59 L (1979), quoting McCormack, 486, 496; Ed 2d 642 Powell v 395 US 89 S Ct 1944; Atherholt, 142; L23 Ed 2d 491 See also Wedin v 298 NW 483 1; Casey, Lewis v 518 US n 116 S Ct 135 L Ed 2d 606 (1996)(“standing... jurisdictional waiver”); subject and not Iron Society Heckler, 67, 70; Arrow Honor 464 US S L 104 Ct 78 Ed 2d (1983) (courts jurisdiction “lack to decide moot cases because their controversies”); authority only constitutional extends to actual cases or 372 by Opinion Young, J. nature, at they may be raised jurisdictional

are by the may parties.17 time and not be waived Likewise, case law has also viewed the doctrines our justiciability affecting “judicial power,” of as ab- judiciary constitutionally sence of which renders adjudicate point the claim.18This is a made powerless R Anway Rapids v Co:19 Grand tribunal, duty court, every judicial “The of this as of is determining rights persons property, limited to of or of actually particular in the case which are controverted When, determining rights, before it. such it becomes law, necessary give opinion upon question an that Inc, Services, 18; 2485; n Reno v Catholic Social 509 US 58 113 S Ct (1993) (noting ripeness L125 Ed 2d 38 that doctrine is drawn from judicial power prudential constitutional limitations on as well as consid- erations). 17Reno, supra (noting ripeness question may raised be on the motion, by parties); Court’s own and that the Court cannot be bound Women, Lewis, supra (standing subject waiver); Org not Nat’l Inc (1994) Scheidler, 249, 255; 798; v 114 S L Ed 2d 510 US Ct 127 99 (standing open stages litigation”); “remains to review at all of the Moore, 149, 150; 2066; Calderon v 518 US 116 S Ct 135 L Ed 2d 453 (1996) (“mootness any stage litigation”). can arise at 18 contrast, agency possess “judicial In an administrative does not rather, power”; authority agency is administrative derived from 267; Holloway Seating Co, 21 the statute that created it. v Ideal 313 Mich (1946). agencies quasi- NW2d 125 While administrative “often act in a judicial capacity, recognized they perform it is are established to Co, essentially Judges Bay executive functions.” 74th Judicial Dist v (1971). 710, 727; agency As an administrative NW2d possess may “judicial power,” does not not exercise neither is it “judicial words, power.” bound the limitations of In administra other agencies justiciability tive are not bound the same limitations that authority judiciary. affect the See North Carolina Utilities Comm (CA Comm, 4, 1976); v Fed 537 F2d 787 Gas Communications Tennessee Comm, (1979); Pipeline App DC F2d Co Fed Power 197 US (CA Molybdenum Secretary Labor, 10, 1983); Climax Co v 703 F2d 447 Foundation, 726, 735; Fed Comm v Communications US Pacifica S Ct 57 L Ed 2d 1073 592, 615; 179 NW 350 Council v Ins Comm’r Opinion Young, J.

opinion weight precedent have as a for future deci- empowered sions. But the court not to decide moot declare, propositions, or abstract or to for the government cases, principles of future or rules of law which thing cannot affect the result as to the in in issue the case counsel, stipulation parties before it. No or of whether case, enlarge the case before the court or in other can power, duty, the regard.” or affect the of the court in this [Citation omitted.]

Similarly, Novi v Robert Adell Children’s Funded Trust,20 recently this Court stated: litigated

Where facts of a case make clear that a moot, is, course, issue has become a court bound to take suit, note of such fact and dismiss the if parties even the do “ 1 present not the issue of mootness. “Courts are bound to authority, take notice of the may, limits their and a court should, motion, though on its question own not pleadings by counsel, raised recognize or its lack of jurisdiction accordingly by and act staying proceedings, dismissing action, thereof, disposing otherwise at ’ ” “ any stage proceeding.” judicial of the ‘[t]he Because power... right is the to determine actual controversies ” arising litigants,’ hearing between adverse a court a case in which mootness has apparent become would lack the power to [Citations hear the suit. omitted.][21] Because “the most critical element” of the “judicial power” requires that a genuine case contain a contro- versy between the parties,22 we must ensure that one exists before exercising our authority. judi- ciary arrogates powers to itself the of the executive and 242, 255 n 701 NW2d opinion Fighters See also Justice lead in Detroit Fire Ass’n Weaver’s Detroit, (1995), n Mich where she noted “[s]tanding jurisdictional power is a issue that concerns the of a court to hear and decide a case and does not concern the ultimate merits underlying of the substantive issues of the action.” Wildlife, supra Nat’l at 615. MICH363 Opinion Young, J. it outside the whenever acts branches

legislative Fidelity to “judicial power.” constitutional confines this Court be compels constitutional structure our usurping from judiciary “vigilant preventing Thus, branches.”23 we political powers justiciability concern reiterate that adjudicate judiciary’s jurisdiction constitutional Questions of containing genuine controversy.24 cases in the may any stage proceed- be raised at justiciability not be waived ings, sponte, even sua erroneously court has exercised parties.25 Where lower “jurisdiction an court has judicial power, appellate its merely purpose merits but for the appeal, on not of the in entertaining the error of the lower court correcting the suit.”26

23Lee, supra at 737. jurisdiction” conceptually This notion of “constitutional is dis “subject-matter jurisdiction.” “jurisdiction” tinct from The term is authority broadly as “the which the court has to hear and defined Co, 445, 449; Machinery 263 Mich determine a case.” Ward v Hunter (1933). Subject-matter jurisdiction authority a 248 NW 864 is court’s Arder, try kind or character. See Bowie v 441 Mich to a case of certain (1992). 23, 39; authority only 490 NW2d 568 Our to hear cases genuine controversy depend subject containing a does not on the case; rather, it from the structural boundaries matter of the flows Edison, Ins Detroit delineated in our constitution. See also Travelers v primary jurisdiction supra (discussing distinctions between and subject-matter jurisdiction). Appeals erroneously have We note that some recent Court cases dispositive equated standing capacity purposes to sue for the with 2.116(C)(5). Morton, See, example, Rogan motions under MCR v (1988); Zamarron, 483; App 423 NW2d 237 v Afshar (1995). However, 86; previously App 530 NW2d 490 as this Court Mich Co, (1992), the noted in Leite v Dow Chemical two conflating concepts are unrelated. Our courts are admonished to avoid the two. Corrick, 435, 440; 829; 80 L Ed 1263 United States v 298 US 56 S Ct Ins Comm’r Council v Opinion Young, J. THIRD-PARTYSTANDING

b. petitioners petition, In I of their amended count violating policy challenge appellants’ endorsement as rights appellants’ Thus, I count of the insureds. peti- third-party standing petition concerns —whether rights may litigate of others. tioners to vindicate litigant general vindicate rule is that a cannot disfavoringjus rights party.27 of a third The rule party litigating rights of a third —“assumes tertii— that right appropriate party with the has (or challenge challenge) governmental not incentive necessary appro- and to do so with the zeal action priate presentation.”28Furthermore, this rule reflects brought by “healthy that if the claim is a third concern” might upon party, ‘called to decide “the courts be significance questions public even abstract wide may though governmental institutions be more other though competent and even to address unnecessary protect intervention be ”29 rights.’ individual general rules, often the case with there are As is third-party standing recognized exceptions. While jurisprudence permit- generally disfavored, federal has litigant circumstances, a ted, under certain limited rights requiring In addition to of another. assert (1984); Smith, 1; People Hoven v 360 NW2d 841 Ver See Chevrolet, Dunkirk, (1958); Mich 88 NW2d 408 Inc v Woodward Rocha, plaintiff App “[T]he People Mich interests, legal rights generally and cannot rest must assert his own legal rights parties.” of third on the or interests Worth his claim to relief (1975) Seldin, 490, 499; 2197; (citing L Ed 2d 422 95 S Ct 45 343 v US [1943]). 44; 493; Ullman, 87 L Ed 603 v 318 US 63 S Ct Tileston 28 564; Tesmer, 125, 129; L Ed 2d 519 543 US 125 S Ct 160 Kowalski v (2004).

29 omitted). (citation Id. 475 MICH363 Opinion Young, J. litigant standing,30 litigant

that the must establish First, make two additional showings. litigant also a sufficiently must have “close relation to the third Second, party.”31 “there must exist some hindrance to party’s ability the third his or her own protect interests.”32

Michigan’s third-party standing jurisprudence is con- v Mary siderably developed. Lewis,33 less In garnishee challenged constitutionality defendant aof codefen- prejudgment dant’s garnishment. This Court discussed and denied third-party standing to the defendant after discussing from a United Supreme factors States Court dissenting opinion:34 rule, general party may

As a one not raise the denial of person’s rights... another constitutional . Defendant quotes portions Village of Justice Brennan’s dissent in Boraas, 1; 1536; Belle Terre v 416 US L 94 S Ct 39 Ed 2d (1974), exceptions general where two to this rule are first, discussed: those situations where there is evidence consequence the direct of the denial of the constitu- rights impose tional of the other would substantial eco- injury upon party asserting second, nomic right; litigant’s those instances where the interest and the oth- rights may er’s interest intertwine and the latter’s not be (1976). Singleton Wulff, 2868; v 428 US L S Ct 49 Ed 2d 826 Ohio, 400, 411; v Powers 499 US 111 S Ct L 113 Ed 2d 32Id.; Tesmer, supra at 130. 401, 416; 249 NW2d 102 Rocha, People App 1; (1981), In v the Court Appeals rejected equal protection argument the defendant’s on the rights

basis that the defendant could not assert the constitutional of a party. Inexplicably, panel third the Rocha did not cite or discuss this Lewis, Mary years Rather, Court’s decision in decided five earlier. panel setting requirements relied on two law review articles in forth the third-party standing. Council v Ins Comm’r Opinion Young, J. they are effectively in other manner because vindicated evading review. capable of constitutional qualifies how it In the bank does not show this case conclude exceptions.... We therefore under either of these process standing interpose to the due that the bank has no prejudg- regarding defendant the rights principal of the 416.] Mich at garnishment. [399 ment tertii where a Thus, permit jus the Court would Mary injury, show that could establish an economic litigant possess- and the litigant party the interests between the “intertwine,” and that the third ing right the show evading constitutional rights capable “are party’s review.” by Mary

In the test utilized Court judgment, our litigant that a estab- analytically Requiring is deficient. otherwise, merely economic or injury, lish an More- standing of our traditional doctrine.35 component “inter- over, litigant party and the third have not lead to the inference that twining interests” does tertii will be an ardent party establishing jus rights party. of the third The third proponent curious, capable a claim is factor is the most for whether recognized that is evading review is consideration mootness, standing.36 not as relevant federal test for Accordingly, adopt we the traditional A party as articulated Tesmer. third-party standing must, an the claims of another as seeking litigate matter, under the test estab initial establish 37Second, must have a Lee, party supra lished right relationship” party possessing with the “close 13. See footnote Publications, City Lansing, Inc v See Federated Co, Inc, Publishing (2002); In re Midland NW2d 383 NW2d 37 See footnote 13. Young, J. Last, order to establish third-party standing.

litigant must establish that there is a “hindrance” to party’s the third ability protect his or her own interests. applied case,

As to the facts of this petitioners cannot meet requirements of third-party standing and cannot litigate rights appellants’ insureds. As- suming arguendo that petitioners could satisfy the Lee elements,38 and assuming without deciding peti- tioners share a sufficiently “close relationship” with appellants’ insureds,39 there is absolutely no evidence that obstacle or prevents hindrance appellants’ insureds from protecting their own through interests litigation. Therefore, we hold that petitioners do not have standing to assert that the rights appellants’ of insureds were violated appellants’ managed care endorsement.

c. RIPENESS The doctrine of ripeness closely is related to the doctrine of standing, as both justiciability doctrines pending assess presence claims of an actual or injury imminent However, fact.40 standing and ripe- 38 petition petitioners Petitioners’ amended maintains that are “unable to obtain purposes reasonable access to no-fault insureds.” For the of this opinion, we injury do not address legally whether this claimed is a protected interest, required by as Lee. “provide Petitioners maintain reasonably that their members neces sary appellants’ medical patient-physician care” to insureds. The rela tionship frequently sufficiently is permit deemed third-parly intimate to standing. Singleton, opinion See (asserting rights footnote 30 of this of patients regarding abortion); female Connecticut, 479; Griswold v 381 US (1965) (asserting rights 85 S Ct 14 L patients Ed 2d 510 of married regarding contraceptives). Seldin, supra, See Warth v (standing n US 499 “bears close affinity ripeness”). Wright, of Cooper, See also 13A Miller & Chiropractic Council v Ins Comm’r Opinion Young, J. underlying concerns.41 The ness address different standing designed doctrine of is to determine whether litigate the asserted particular party properly ripeness, claim for relief.42The doctrine of on the other hand, suitability party; does not focus on the rather, of the action.43 ripeness timing focuses on II that petitioners’ petition

Count asserts appellants’ managed option rights care violates the including member chiropractic providers, petitioners’ organization, petitioners As a have ship. nonprofit litigate on behalf of their members to the standing standing their members would have as degree individual asserts that plaintiffs.44 petition provid Procedure, 3531.12, 50, noting justiciability p § Fed Practice & that the Alcock, closelytogether.” Society See also Wilderness doctrines are “tied (CA 11, 1996), noting that the in the 83 F3d “confusion law standing “hardly surprising,” ripeness” was as both doctrines injury. However, “important require actual or imminent an distinction” existed between the two doctrines. Geary, 312, 320; See Renne v 501 US 111 S Ct 115 L Ed 2d 288 (1991), “[jjusticiability only standing which concerns not noted claims, timing litigants particular appropriate to assert but also the judicial intervention.” case, placed question “[W]hen in issue in a is whether person challenged proper party request is whose is to an adjudication particular of a issue and not whether the issue itself is 83, 99-100; 1942; justiciable.” Cohen, L Flast v 392 US 88 S Ct 20 Ed 2d (1968). 947 43 “[Rjipeness peculiarly question timing.” Blanchette v Con 140; 335; 102, Corps, 42 L necticut Gen Ins 419 US 95 S Ct Ed 2d 320 (1974). States, 288, 292; Navegar, App See also Inc v United 322 US DC (1997) (ripeness timing “focuses on the of the action rather 103 F3d 994 it”); seeking bring PeoplesRights Organization, parties than on the Inc (CA Columbus, 6, 1998); Society,supra City v 152 F3d 522 Wilderness determining noting ripeness, “[w]hen that a court asks whether at complainant bring this is the correct time for the the action.” (Emphasis original.) 44 Wildlife, supra, Appellants 629. ask this Court to Nat’l 471 Mich Comm, adopt holding Washington Apple Advertising v State of Hunt

380 Opinion Young, J. ers “are entitled to their paid be reasonable cus tomary charge,”45 significantly, appellees but assert as their that injury appellants’ policy endorsement vio by reimbursing providers lates MCL 500.3157 at a rate less than their Review of the record customary charged.46 in this case reveals no evidence that petitioners’ have an experienced injury members actual as a result policy of appellants’ petitioners endorsement. Because hypothetical seek relief for a injury, ripeness of the claim comes into question.

The ripeness supported by doctrine is both constitu- 333; (1977), 2434; requiring L US S Ct 53 Ed 2d 383 additional organizational standing. However, elements to establish because we ripeness grounds, propriety resolve this issue on we need not address the adopting Hunt. degree petitioners customary To the seek relief based on the charges membership, Appeals panel of their the Court of below petitioners’ argument light Advocacy Org determined that failed in Ass’n, 365, 377; App Patients & Providers Auto Club Ins (2003). App Advocacy Org NW2d See 262 Mich 246 n 12. was Court, participating justices concluding affirmed this with all six reasonable, customary, compensable. rather than fees are Additionally, petitioners Mich did not appeal ruling, Appeals they cross-appeal. the Court of nor did file a Therefore, properly the issue is not before us and will not be further Inc, Laboratories, reviewed. Therrian v Gen 127 NW2d opinion, permits As noted footnote 45 of this the statute a medical provider charge a reasonable amount for its services. MCL 500.3157 provides: physician, hospital, person A clinic or other or institution lawfully rendering injured person treatment to an for an bodily injury by personal protection accidental covered insur- ance, person providing and a or institution rehabilitative occu- pational training following injury, may charge a reasonable products, amount for the services and accommodations ren- charge person dered. The shall not exceed the amount the customarily charges products, institution for like services and involving accommodations in cases not insurance. y Council Ins Comm’r by Opinion Young, J. As a threshold mat- principles.47 and prudential tional judiciary to ter, Michigan permits Constitution the “most critical ele- only “judicial power,” exercise genuine that a requirement ment” of which is the A claim lacks controversy parties.48 exist between controversy, where justiciable and there is no ripeness, sufficiently matured [not] “the harm has asserted ... .”49 judicial warrant intervention en- allegation policy that appellants’ Petitioners’ of their members rights dorsement violates the for review. yet ripe violation of MCL 500.3157 is not petition- in the record before us indicates that Nothing have in fact been reimbursed at less than ers’ members ripeness amount. The lack of is further reasonable fact-intensive nature of particularly buttressed petitioners’ provides claim. MCL 500.3157 that chiro- amount” for practors “may charge reasonable services establishing rendered. Petitioners have burden their in order charges the reasonableness of members’ Moreover, impose liability on the insurer.50 mem- surrounding petitioners’ reasonableness are charges bers’ factual nature and must be resolved jury.51 Because the record is devoid completely Interior, Hospitality Dep’t 803, 807; See Nat’l Park Ass’n v 538 US (2003). 2026; prudential L 123 S Ct 155 Ed 2d 1017 considerations “ require that a court consider both ‘the fitness of the issues for ” “ hardship parties withholding decision’ ‘the court (citation Carbide, supra Thomas Union consideration....’” at 581 omitted). Wildlife, supra, Nat’l 471 Mich 615. See also Thomas v Union Carbide, supra (ripeness “[a]s at 579 must be established a threshold matter”). Seldin, 2197; L Warth v 499 n 95 S Ct 45 Ed 2d 343 US Ass’n, Nasser v Auto Club Ins 51 Id. Kelly, J.

any facts an actual or imminent supporting injury fact, we conclude that petitioners’ ripe claim is not juncture at justiciable.52 review this and is not

IV CONCLUSION justiciability Issues of concern the judiciary’s consti- tutionally jurisdiction delineated only to exercise “judi- power” only cial and hear involving cases an actual controversy. Therefore, questions justiciability may any stage be raised at in the proceedings may and not be waived the parties. I,

Regarding count we hold that petitioners do not satisfy the third-party test for standing, and not litigate on behalf of appellants’ II, insureds. In count petitioners rights assert the of their members. Assum- ing that petitioners could litigate otherwise the claims members, of their petitioners have not established an actual or injury; thus, imminent the claim is not ripe for review.

We therefore vacate the judgments of the circuit court and the Court of Appeals and reinstate the decision of the Commissioner. J., J.

Taylor, J., Corrigan, C. and Young, concurred with KELLY, J. (concurring the result I only). agree with result reached the majority. However, I continue to have concerns with the test for standing this Hts, Muskegon 631, 633; See Johnson v (1951) (Courts generally question, “will not decide a case or in or on “ controversy” duty which there is ‘[i]t no real because is not our ” pass propositions.’ on moot or abstract [Citation omit ted.]). Comm’r Council v Ins Opinion by Weaver, Comm’rs, Bd in Lee v Macomb Co adopted Court (2001) (KELLY, J., dissent- 726, 747; 629 Mich NW2d ing). set requirements incorporates

The test in Lee 555; 112 504 US v Lujan Wildlife, forth Defenders Lee, Under L Ed 2d 351 S Ct must establish an actual seeking standing plaintiff injury particularized. is concrete imminent the defen- a causal connection between There must be injury, injury and the plaintiffs dant’s action redress. As provide for which the court can must be one only in Nat’l my I concurrence in result stated & Environmental Upper Federation Peninsula Wildlife Council Cleveland Co,1 I have come to Iron Cliffs in toto these federal wrongly adopted believe that Lee standing requirements. “controversy” “case” and

By adopting Lujan access to Michi- rule, impediments the Court creates There is no not found in our Constitution. gan courts for stand- injury requirement mandatory particularized See ing under either the federal or state constitutions. in at 682-683. my opinion Wildlife, supra Nat’l Michigan’s standing requirements I still believe blocks wrongly before Lee were sufficient and that Lee our state courts. access to only with the result and (concurring WEAVER, I reached concur with result

dissenting part). strongly reasoning But I dissent from its majority. analysis. and Iron In Nat’l Federation Cleveland Wildlife Cliffs (2004),

Co, majority Mich 800 NW2d heightened fundamentally changed and justices four 608, 676; Mich Mich Opinion Weaver, J. the burden of standing pursue causes action when they superimposed the federal constitutional “case or controversy” standing constraints on the plaintiffs.

Today majority again earlier, expanding its incorrect, decisions Lee v Macomb Co Bd of Comm’rs, (2001), NW2d 900 Nat’l Federation. In Lee and Nat’l Wildlife Wildlife Federation the majority imposed the United States Constitution’s “cases controversies” restrictions on standing in Michigan courts. change This of law Michigan’s constitutionalized doctrine, which was formerly prudential limitation. Relying on Nat’l Wildlife, the same majority narrowed who qualifies as an “aggrieved party” for the purpose of invoking the appellate jurisdiction of this Court Federated Ins Co v Comm, Oakland Co Rd 286; 715 NW2d 846

The majority now compounds these errors transforming the prudential doctrines of mootness1 and ripeness2 into constitutionally based doctrines that affect the jurisdiction of the Court. See ante at 370-374.

When the mootness and ripeness doctrines are viewed as prudential limits, a state court has discretion in applying those By contrast, doctrines. the “case or controversy” Const, clause in III, § US art 2 requires federal courts to dismiss cases that are moot or not ripe. By transforming the doctrines of ripeness mootness and into constitutional requirements, the majority requires 1 “Generally, an action is longer presents considered ‘moot’ when it no justiciable controversy because issues involved have become academic (6th or Dictionary ed), dead.” p Black’s Law 1008. 2 Ripeness refers to the threshold conditions that must exist before a dispute sufficiently is mature to enable a court to decide it on the merits. Maraist, Environmental ripeness and land use law: The doctrine in law, 1997). (February, Florida land use 71 Fla B J 58 Comm’r v Ins Council Opinion by Weaver, issues jurisdictional treated as doctrines to be these courts as well. Michigan state the mootness dicta, that the states, albeit majority The that concerns doctrine justiciability is a doctrine adjudicate jurisdiction constitutional judiciary’s from shifting mootness 370-371, But at 374. cases. Ante con- doctrine a constitutional doctrine to a prudential concerning recent decisions this Court’s most flicts with Co, Inc, Publishing Midland In In re mootness. both (1984), and 148, 151 n 362 NW2d Publications, Lansing, v City Inc Federated (2002), cited the venerable the Court 98; 649 NW2d unless decide moot issues will not rule that the Court likely to public significance is one of the issue However, if the recur, judicial evade review. yet may con- the Court’s is one that affects mootness doctrine not decide could then Court jurisdiction, stitutional it be issue, regardless significant of how a moot recur and evade it be to likely nor how would public, Doe, 305, 330; 108 484 US Honig review. See (1988) C.J., (Rehnquist, L Ed 2d 686 S Ct (“If indeed Art. Ill concurring) it were which — controversy or requirement reason of its case judicial power of federal the exercise —underlies doctrine, repetition, yet evad- ‘capable mootness relied the Court this exception upon review’ ing Article III extends incomprehensible. be case would only to cases and of the United States judicial power controversies; except requirement it not from this does yet repetition, are ‘capable other lawsuits which ”). review.’ evading doctrine “is ripeness majority asserts prin- prudential by both constitutional

supported In the courts Ante at 380-381. ciples.” federal III on both art “case doctrine is based ripeness Opinion by Cavanagh, J. controversy” judicial and on power pru- limitations on refusing jurisdiction. to dential reasons exercise Cases, 102, Rail Act 419 US Regional Reorganization 138; 335; But, Ct Ed 2d 95 S L as I in Nat’l explained federal constitution’s Wildlife, III, apply § art to the limitations federal court’s they do not power; apply power to the Michigan’s state Nat’l at Wildlife, supra courts. 660- (WEAVER, J., concurring Thus, in result only). while ripeness federal court’s doctrine involves both the controversy” III, § “case or requirement of art prudential concerns, federal constitution and Duke Inc, Power Co Carolina Environmental Study Group, 59, 81-82; 438 US (1978), 98 S Ct 57 L Ed 2d 595 Michigan’s only courts need consider prudential con- Further, cerns. for the explained above, same reasons holding that the on ripeness doctrine is based constitu- grounds tional is inconsistent with recog- this Court’s a showing futility nition that an may trigger excep- tion to ripeness doctrine. See Paragon Properties Co Novi, v City 568, 581-583; Mich (1996) (considering, rejecting, but the futility argu- ment), Council, and Lucas v South Carolina Coastal 505 US 1014 n 112 S Ct L 2886; 120 Ed 2d 798 For reasons I only these concur in the result of the opinion, majority and from majority’s dissent rea- soning analysis and that mistakenly transforms prudential ripeness doctrines of mootness and into constitutionally based jurisdic- doctrines that affect the tion of the Court. J. with the result (concurring part CAVANAGH, I

dissenting part). concur with the result reached majority with respect petition. count I of the However, I respectfully dissent majority’s from the v Ins Comm’r Council Makkman, allege II. regarding count Petitioners position sought Exchange Insurance Farmers respondent by improperly services chiropractic the use reduce by improp- chiropractic providers access to limiting provid- determining paid chiropractic to be erly rates See MCL contrary to the no-fault act. ers, these 500.3107(l)(a); MCL 500.3157. Because I believe on petition- are to confer allegations sufficient II, disagree majority’s I with the to count pursue ers claim. petitioners’ merits of to not reach the decision in dissenting in and (concurring part MARKMAN, analysis in and the result I concur the part). both I respect to count by the lead with opinion reached II, to I do not However, respect with count petition. analysis that is justiciability believe that the traditional 1963, art inquiries to under Const normally applied § necessarily dispose sufficient to briefing order presented. Because I would additional I in the join on these cannot reargument questions, analysis with to count respect lead and results opinion’s II. BACKGROUND

I. Ex- Farmers Insurance Intervening respondents offered Mid-Century Company Insurance change policies to no-fault an endorsement their automobile agreed care from accept insureds to medical which (PPOs) in organizations preferred provider network percent premiums. exchange for a discount their Michi- Michigan Chiropractic Council and Petitioners request respon- filed a with gan Society In- the Office of Financial and Commissioner of dent hearing a contested-case Services to conduct surance Opinion by Markman, J. contrary and invalidate the as being endorsement act, no-fault MCL 500.3101 et seq.

The commissioner that was concluded there nothing improper about endorsement and declined to con- hearing. duct a in the Included commissioner’s written order findings were of fact and conclusions of law several of addressing petitioners’ arguments. With re- spect petitioners’ claim that the endorsement vio- (count rights lated the I), insureds commis- sioner concluded that endorsement was not inherently inconsistent with MCL 500.3107 (setting forth the type benefits a no-fault insurer is liable for act). under the respect petitioners’ With claim that rights provid- endorsement violated of medical (count II), ers the commissioner concluded that nothing act, the no-fault including MCL (detailing 500.3157 allowable provider charges), right conferred the on any provider to be care, chosen to provide nothing in the endorsement with conflicted the requirement pay no-fault insurers reasonable and customary charges, and that the endorsement did not unreason- ably deceptively purportedly affect the risk assumed.1

The trial court commissioner, reversed the ruling the endorsement was inconsistent with the no- act, fault and the of Court Appeals affirmed in a published opinion. Chiropractic Mich v Council Comm’r Services, the Financial and Ins 262 Mich of Office of App 685 NW2d 428 The Court of Appeals concluded that the PPO option violated the no-fault act (1) it because limited an of insured’s choice medical (2) providers and could mislead consumers about the potential savings to selecting be achieved in option. this findings respect The commissioner’s with to counts III and IV are findings omitted appeal because those not at issue on are here. v Council Ins Comm’r Markman, the directing parties leave to granted appeal, We among the issues to be addressed include (1) managed care such optional endorsement as whether an permissible under the no- by intervenors is that offered (2) seq., the of act, 500.3101 whether Court fault MCL et the relying finding on its endorse- Appeals erred (3) misleading, whether deceptive is potentially ment light bring petition, petitioners standing have their having participated their the some number of members affecting managed program, or other reason care standing standing, petitioners and whether have with only petition, regard the in their to all or some of counts (4) by the applied to be circuit the standard review denying petition. court to administrative decision (2005).] [472 Mich 899 II. OF STANDARD REVIEW a dispute party Whether a has and whether con- scope “judicial power” are falls within the de Nat’l we review novo. questions, stitutional which Co, Iron Federation Cleveland Wildlife 608, 612; Cliffs (2004); City v Flushing Warda Council, 330; 696 326, NW2d

III. ANALYSIS justiciability on opinion inquiries The lead focuses usually questions regarding in the raised context “judicial 1963, art scope power.” of this Court’s Const 1. As resolu- opinion, § noted lead whether usually “judicial power” tion of case is within the this dispositive inquiry respect with whether claim, i.e., jurisdiction over a whether possesses Court “judicial Ante at justiciable. the claim is 373-374. authority traditionally understood as power” is of, and to adjudicate or controversies the courts to cases have con- to, parties who meaningful relief provide Opinion by Markman, J. present crete a dispute. interest the outcome of Federation, See supra Nat’l at 614-615. Wildlife However, cognizable by while most matters this scope “judicial Court fall within this traditional power,” jurisdiction always our is not so defined. In instances, certain the Michigan specifi Constitution cally permits requires judiciary or to take cogni zance of fall actions outside the traditional “judicial power.” understanding instance, For 1963, 3, § permits Const art this Court render advisory opinions “as to constitutionality of leg after islation it has been into enacted law hut before See, its effective date.”2 e.g., In re Request Advisory On Constitutionality 71, PA of 2005 (2006); Advisory Opinion on Constitutionality of 281, 1986 PA (1988); Mich see (Melton Question also In re v Prime Ins Certified Syndicate, Inc), 472 Mich Although an advisory opinion scope is outside the of the traditional “judicial power,” because there is no present case or controversy, not preclude this does us from entertaining light such a case in of the language of our Constitution effectively redefining “judicial power” Michigan. in mind,

With this I significant questions believe that arise with respect whether can— judiciary must— take cognizance the petitioners’ claims under 1963, 6, 28, which, § Const art face, at least on its does not seem to require engage we in the usual provision provides, entirety: That in its legislature governor request Either house of the or the

opinion supreme important questions upon court on of law constitutionality legislation solemn occasions as to after it has [Const been enacted into law but its before effective date. 3, § 8.] art v Ins Comm’r Council by Opinion Mabkman, J. 1963, 6, 28, provides § art Const inquiries.3 justiciability part: in any decisions, findings, rulings and orders of

All final agency existing under the consti- officer or administrative law, judicial quasi-judicial and by are tution or which licenses, subject to direct rights or shall be private affect by This review shall by provided the courts as law. review minimum, include, the determination whether such as a decisions, findings, rulings and orders are authorized final law; and, hearing required, by in in which a cases by competent, material supported the same are whether on the record. and substantial evidence whole mandatory The use of the word “shall” indicates 471 City Hosp Corp, directive. Burton v Reed imperative (2005). 745, 752; “provided 691 424 What is Mich NW2d that final decisions law” under the Insurance Code is by 3 that, justices opinion apparently because in the believe The lead issue, However, parties need not reach it. have not raised this we sponte long practice sua has of this Court to raise issues it been necessary and fair of such issues is to a full where consideration Bacila, See, e.g., City Dearborn v determination of the case before it. Bolt, (1958); 99, 147 90 863 Auditor General 353 Mich NW2d (1907). process 283, 286-287; the adversarial Mich 111 NW 74 “Where assistance, duty correctly expound provide fails to valuable a court’s (2002) Detroit, 1211, the law is not excused.” Mack v (Young, J., concurring). Moreover, relating subject-matter jurisdiction, particu questions in by dimension, may time be raised at lar of a constitutional Federation, supra by parties, sponte Nat’l at or sua a court. Wildlife 2.116(D)(3). power Subject-matter jurisdiction MCR involves Wayne Langdon v and determine a cause or matter. a court to hear 358, 367; Judges, is conferred Mich 43 NW 310 It Circuit Court authority Detroit v that established such court. on the court 1963, 6, 329, 331; § Rabaut, art Const NW2d 1963, Michigan, judicial system art and Const the current established subject agency 6, provides be to direct § that certain decisions “shall my Accordingly, entirely appropriate, . ...” it is review the courts 1963, 6, § judgment, art 28 on the address the effect of Const that we presented. issues Mich 363 Opinion by Markman, subject

will to judicial Michigan’s be review under Act (APA), Administrative 24.201 et Procedures MCL seq.: person aggrieved by order, decision,

A final finding, rule, ruling, opinion, action, provided or inaction for under provided this act seek review in the manner chapter for in 6 of the procedures administrative act of 306, 1969 PA [MCL MCL 24.301 to 24.306. 500.244(1).] APA, turn, provides that person

[w]hen a has exhausted all administrative remedies agency, aggrieved available within an and is a final case, decision or order in a contested whether such decision form, or negative order affirmative or the decision or subject review, by order is to direct provided the courts as by law. Exhaustion of administrative does not remedies require filing application rehearing of a or motion or agency require reconsideration unless the rules the filing judicial sought. preliminary, before review is A procedural agency or intermediate or ruling immediately action is not reviewable, except may that court grant leave for such agency’s review of action if of the review final decision provide remedy. or order would not an adequate [MCL 24.301.]

Here, the denied petitioners’ commissioner request for a hearing, contested-case finding they that had failed to demonstrate probable cause in support of their request. However, simply declining rather than to hold a hearing, the proceeded conclude, commissioner as a law, matter of that respondents’ PPO did not option violate the Insurance Code.4 doing, apparently In acting pursuant so commissioner was to his authority 500.2236(5), provides, part: under MCL which Upon insurer, may written notice to the the commissioner

disapprove, prohibit issuance, approval withdraw or advertís- v Ins Comm’r Council Opinion Maekman, J. that the commissioner’s reasonably clear It seems decision, finding, order, a “final order here constituted inaction,” MCL rule, action, or ruling, opinion, decisions, of “final 500.244(1), scope and fell within the of- any administrative rulings and orders findings, 1963, 6, § 28. . . .” Const art Given agency. ficer or fact and findings of order contained the commissioner’s fair to characterize this law, it also seems conclusions in nature. Id. “judicial quasi-judicial” or order as then, a number light foregoing In of the arise:

(1) a “final dealing fact that we are with Does the agency,” officer or ... of administrative [an] decision^ 28, 1963, 6, § art authorize review Const of the justiciability order independently commissioner’s traditionally pursuant heard for cases inquiry required words, this Court In other “judicial power”? to the of Const claims virtue cognizance petitioners’ take APA, 1963, 6, regard § and the without art regard are and without ripe these claims whether standing? have Cleveland parties whether Cliffs claims? More- Indeed, cognizance take of these must we 6, judiciary over, require § if art does Const one, the instant does this to consider a case such as any person ing, delivery state if it form to this violates or act, inconsistent, ambiguous, any provisions or or contains of this clauses, misleading exceptions and conditions contains purported unreasonably deceptively the risk to be as- or affect general coverage policy. sumed in the authority possessed to in his decision that he the The commissioner noted 500.2236, pursuant approval policy to MCL of insurance forms withdraw sought complaint, petitioners specifically the with- and that in their Because the at issue under that section. drawal of the endorsement beyond findings went far what was commissioner’s and conclusions hearing necessary simply deny petitioners’ request for a contested-case to 500.2029, only that such I can conclude under MCL 500.2028 authority findings pursuant MCL 500.2236. made to his under were by Opinion Markman, raise the concern that traditional requirements be tactic of can circumvented mere first a introducing dispute process? into administrative Would, example, chiropractor the brother of a who at challenged administrative rule issue this case equally empowered be an adverse decision upon to pursue commissioner a judicial appeal?

(2) Notwithstanding 6, 28,§ art to Const what extent, commissioner’s any, if is the subject decision judicial In a significant review? addition presenting concerning issue an relationship between adminis- trative agency government, branch of significant this case presents concerning issue between an relationship agency administrative and the legislative of government, namely, branch whether the Legislature intended that the commissioner’s decision to hold hearing, not, a contested-case constitutes an entirely discretionary and unreviewable decision.

It be argued, that, could if perhaps, even we con- petitioners cluded that had satisfied justiciability re- quirements, petitioners would still remedy lack a be- only remedy cause the this Court could conceivably provide would be to order the commissioner hold a However, contested-case on hearing. review, initial even that relief be unavailable because the commission- er’s decision whether to hold hearing contested-case would seem to be a discretionary one under MCL 500.2029, 500.2028 and MCL which provide, respec- tively: cause,

Upon probable shall commissioner have power investigate to examine and into the affairs of a person engaged in the business insurance in state to this person engaged determine whether the has been or any competition unfair method of or in unfair or deceptive practice prohibited act or sections 2001 to added).] 2050. 500.2028 (emphasis [MCL Ins Comm’r Council v Opinion Markman, J. to believe probable cause has the commissioner When has of insurance engaged in the business person that a unfair in an engaging in this state or is engaged been deceptive act or or an unfair competition, or method of business, prohibited as of his in the conduct practice hearing by the commis- 2050, and that 2001 to sections of the in the interest thereto would be respect in sioner writing, to Act pursuant give notice he shall first public, amended, being 1969, as Public Acts of of the No. 306 Laws, Michigan Compiled 24.315 of the 24.201 to sections nature of involved, setting general forth person to the proceedings contem- against him and the complaint [MCL 500.2029 2001 and 2050. pursuant to sections plated added).] (emphasis delegation doctrine” forbids “nondelegation judicial to the executive powers legislative

of 1,Mich Pharmaceuticals, 468 v Gate Taylor branches. (2003).5 to an delegation power A 5;n 658 NW2d control only when the proper is agency administrative with sufficient stan agency ling provides statute agen transform an administrative effectively dards to into an decision legislative from a cy’s decision 9; v People at 10 n Taylor, supra executive decision. Taylor, supra As noted in at 8-9: we Clark, simple in Field v of this doctrine is found A statement (1892), 495; 649, 692; 36 L Ed 294 which 12 S Ct US integrity explained Supreme that “the Court United States system government the Consti- ordained maintenance legislative power Congress delegating precludes from its tution” concept This branch. branch or the either the executive underlying powers principle our separation of has its roots in the Yet, Supreme tripartite system government. the United States recognized Court, Court, “that this has also as well as nondelegation powers principle, doctrine separation and the Legislature] prevent Congress [or from particular, our do not Mistretta v obtaining Branches.” of the coordinate the assistance 361, 371; States, 102 L Ed 2d 714 109 S Ct 488 US United (1989). OpinionbyMarkman,J. Turmon, 641-642, NW2d 620 there standards, delegation If are no such because the have been improper Legislature’s powers given improperly agency to an of the executive branch. Governor, & Blue Michigan Blue Cross Shield 1, 53-55; Mich evaluating 367 NW2d In the legislative sufficiency standards set forth an act power delegating agency, presume to an we that the act is Dep’t Seaman, constitutional. Natural Resources 299, 309; NW2d

MCL 500.2028 and MCL 500.2029 that suggest the commissioner need not a on hearing “prob- hold except able cause” to believe unfair practices that have oc- Thus, are occurring. curred or it the seems that com- probable missioner’s determination cause is the Warda, critical event. We noted in supra at the courts have no to authority compel an actor belonging to government another branch of a to undertake deci- sion or determination such or when decision determi- nation purely discretionary. The question naturally arises: Does probable commissioner’s cause deter- purely mination constitute a discretionary determina- Legislature tion? Or has the provided, either explicitly any or to implicitly, guide standards this determination? Warda, In we the obligation city addressed of a (a legislative council entity) reimburse a officer police for fees legal defending against incurred in himself charges. criminal sought, The officer city and the coun- denied, cil pursuant reimbursement to MCL 691.1408(2), which provides:

aWhen criminal action against is commenced an officer governmental or employee agency upon of a based the officer employee employ- conduct of or in the course ment, employee if the or officer had a basis for reasonable believing acting that he scope or she within was his authority conduct, or alleged her at the time of the Ins Comm’r Council v Markman, for, engage, or furnish agency may pay governmental employee or as attorney to the officer of an advise services or the officer action, appear represent for and and to to the [Emphasis added.] in the action. employee council’s choice was city determining In subject not decision that was discretionary” “purely infirmity, we constitutional absent some review reasoned: “may” § clear that the in 8 makes of the word use left to attorney fees is a matter pay an

decision to officer’s Further, we note that municipality. the discretion of (with, “may” qualify the word not limit or the statute does reasonableness) instance, provide requirement of is to be which that discretion other standards such, city had full Flushing council As exercised. 691.1408(2) choosing whether under MCL discretion [Warda, attorney supra 332.] at fees. plaintiffs reimburse also noted that We Court, “judicial Const power” this exercise of

[t]he 6, 1, be standards contemplates § that there will art the basis of which —legally comprehensible standards —on such standards agency can be reviewed. Whether decisions constitution, provi- provisions or the of the of the consist laws, judicially comprehensible pertinent of other sions judicial [Id. required in order to enable review. standard 339.] at any meaningful include Legislature did not

Because the exercise of a court could review by which standard discretion, city concluded that the we municipality’s not sub- deny to reimbursement was council’s decision review. ject judicial af- statutorily discretion

Unlike standardless Warda, however, the relevant municipality forded cause, the probable provide “[u]pon here statutes examine and investí- power have shall commissioner Opinion Markman, J. gate,” 500.2028, MCL and that “[w]hen the commis- probable sioner has cause believe that a person” is engaging improper practices “and that a hearing the commissioner in respect thereto would inbe interest of the public,” the commissioner shall take certain steps. MCL 500.2029. light

In language, this can it “probable be said that is, fact, cause” a standard being employed to guide the commissioner’s discretion? Or Legislature did the merely intend that “probable cause” serve to define a quantum proof, and that the commissioner’s decision to hold a hearing contested-case is purely discretionary? “Probable cause” is a concept normally found in the law,6 criminal but it is a well-understood and well- defined concept in our jurisprudence. such, As is “prob- able cause” a “legally comprehensible ... on standards the basis of which agency decisions can be [judicially] Warda, reviewed”? supra at 339. Or “probable does cause” instead establish a proof burden of that petition- satisfy? ers must If it is merely standard of proof, given that trial courts are accustomed to making prob- able determinations, cause and that appellate are courts accustomed to assessing whether trial courts have cor- rectly established probable cause, does review of the commissioner’s determination concerning whether probable cause exists fall squarely within power? Or should it instead be inferred from the discretionary nature “probable cause” decision Legislature intended that the commissioner’s assessment “probable cause” be unreviewable? If the “ “probable We have defined ground cause” as ‘a reasonable suspicion, supported by strong [in circumstances themselves] to warrant person a cautious in the guilty bebef that the accused is of the offense ” charged.’ People (2003) Richardson, 923, See (Corrigan, (citation omitted). C.J., concurring) v Ins Comm’r Council by Markman, have the intend, body that does did so Legislature unreviewable, given a decision to make such power nondelega- § and the 1963, 6, art of Const language tion doctrine? commissioner’s that

If to conclude we were denying petition in this case— decision ultimate that the PPO ruling hearing a contested-case i.e., by law— because was authorized option was valid— not found, the commissioner was cause was probable no precluded review hearing— to hold a is required ques- Or does the ultimate that determination? upon hearing in which a “case[] tion remain this is a whether 6, § 28. If the latter is the Const art required”? the commis- case, that that we review require would so, If probable determination of a lack of cause? sioner’s that decision reviewed under standard would be evidence on the material and substantial “competent, petitioners they whole record”? Have here shown issue, actually have harmed the endorsement at been was not such that the commissioner’s determination material and substantial evi- supported “competent, they? dence on the record”? Must whole (3) significance legal Of what are the commissioner’s his decision not apart conclusions from hold Even if we were to conclude hearing? contested-case probable that the commissioner’s cause determination unreviewable, discretionary ap- and therefore it was 500.2028 and MCL 500.2029 are not pears MCL only provisions relied on the commissioner reaching decision. commissioner also asserted authority approval that he to withdraw possessed 500.2236(5). policy pursuant insurance forms to MCL provision provides: That insurer, commissioner

Upon written notice to the may disapprove, approval prohibit the issu- withdraw Mich 363

Opinion by J. Maekman, anee, advertising, delivery any any person or form to in act, if provisions this state it violates of this or contains inconsistent, ambiguous, clauses, misleading or or contains exceptions unreasonably deceptively and conditions that or purported affect the general risk to be assumed in the coverage policy. objec- specify The notice shall provisions tionable or conditions and state the reasons for legally the commissioner’s If the decision. form is in use state, in give insurer this the notice shall effective date of disapproval, the commissioner’s which shall not be days subsequent mailing less than 30 delivery to the legally use, the notice to the If insurer. the form is not then disapproval immediately. shall be effective The commissioner proceeded to conclude— appar- ently pursuant to his authority under MCL 500.2236— that the option PPO did not violate the Insurance Code. respect petitioners’ With to claim that the endorsement (count rights I), violated the of insureds the commis- sioner found that the endorsement was not inherently inconsistent with MCL 500.3107. With respect peti- tioners’ claim that the endorsement violated the rights (count providers II), medical the commissioner con- cluded that nothing act, the no-fault including MCL 500.3157, right conferred the on any provider to be care, chosen to provide nothing the endorsement conflicts with the requirement that no-fault insurers pay reasonable and customary charges, and that endorsement does not unreasonably or deceptively af- fect the purportedly risk assumed.

Thus, it appears that the commissioner did not merely decline to hold a hearing; rather, contested-case he also affirmatively reached a legal number of conclu- sions. petitioners Because are challenging these conclu- sions, and not simply the failure to a hearing, hold I am not certain that the arguably discretionary nature of the commissioner’s authority to hold a contested-case hearing under MCL 500.2028 and MCL 500.2029 is Council v Ins Comm’r Markman, Rather, if justiciability inquiry. peti- dispositive order, decision, finding, are a final “aggrieved tioners action, rule, or inaction ruling, opinion, provided act,” 500.244(1), are not entitled they under this MCL the APA? proceed under (4) Finally, “aggrieved” are even petitioners pursuant 500.244(1)? determination made? MCL How is this Might ultimately this to the of a equivalent boil down is, justiciability argued That can it be that an inquiry? decision at the administrative level adverse injury” of a to meet the equivalent “present required it ripeness requirements?7 Might also be argued that an adverse decision below— even a decision on a matter that could not have brought been before the it judiciary justiciable— because was otherwise not injury? constitutes a present itself blush, position appear At first this would to be consistent with the use 7.203(A), “aggrieved” interpreted recently of in as in MCR Federated Ins Comm, (2006), Co v Oakland CoRd in that “aggrieved” suggests it that one is when one has suffered an adverse 7.203(A) provides Appeals decision below. MCR that the Court of has jurisdiction appeal right by “aggrieved party” an of an of: (1) judgment court, A final or final order of the circuit or court claims, 7.202(6),except judgment in as defined MCR or order of the circuit court

(a) tribunal; appeal on from other court or (b) plea in a criminal case which conviction is based on a contendere; guilty or nolo 7.202(6)(a)(iii)-(v) appeal An from an order described MCR is respect portion limited to the of the order with to which there is an appeal right. (2) judgment A or order of a court or tribunal from which by appeal right Appeals to the Court of has been established law or court rule. by Markman, questions

I believe these constitutional is- present resolved for a determination proper sues must be us, addressed, they of the case before and that are not resolved, In opinion. my judg- much less the lead ment, briefing further required parties required by further consideration is this Court. TV. CONCLUSION I not justiciability analysis do believe that the that is traditionally applied inquiries under Const art 6, § 1 is necessarily dispositive Rather, in this case. number of constitutional concerning the ad- process Michigan ministrative exist from apart this analysis, and these questions should be resolved for a proper determination case before us. The lead address, opinion answer, fails to much ques- less these such, I tions. As believe additional consideration this warranted, Court is I and would direct the to file parties supplemental briefs on the raised in opinion. issues this

Case Details

Case Name: Michigan Chiropractic Council v. Commissioner of the Office of Financial & Insurance Services

Court Name: Michigan Supreme Court

Date Published: Jun 28, 2006

Citation: 716 N.W.2d 561

Docket Number: Docket 126530, 126531

Court Abbreviation: Mich.