Lead Opinion
Petitioners, two organizations representing the interests of Michigan chiropractors, challenged the validity of the “Preferred Provider Option” offered by appellants to their policyholders. In count I of their petition, petitioners claimed that the option violated the rights of the appellants’ insureds. In count II of their petition, petitioners claimed a violation of the rights of chiropractic providers. Regarding count I, we hold that
I. FACTS AND PROCEDURAL HISTORY
The appellant-insurers offer a “Preferred Provider Option” (PPO) to their no-fault automobile insurance policyholders, allowing their insureds to elect to limit their choice of medical care providers in the event they require personal injury protection (PIP) benefits. In exchange for reduced PIP premiums, insureds agree to receive treatment from a network of medical care providers maintained by Preferred Providers of Michigan (PPOM). In the event that a policyholder seeks treatment from a provider outside the PPOM network, the insured must pay a deductible, and provider reimbursement is limited to PPOM’s customary reimbursement rate. The “Preferred Provider Option” is entirely voluntary; if policyholders do not opt for the endorsement, they do not receive the premium discount and are not limited to the PPOM network of providers.
Appellants began offering the discounted policy option in July 2000.
The Commissioner sought additional information from respondents and petitioners, which petitioners refused to supply. On the basis of the record established, the Commissioner rejected petitioners’ request for a contested case hearing. The Commissioner concluded that the endorsement did not violate the no-fault act, MCL 500.3101 et seq. Petitioners appealed to the circuit court, which reversed the decision of the Commissioner and held that the “Preferred Provider Option” was not authorized by law.
The Court of Appeals affirmed the circuit court judgment, holding that respondents’ PPO endorsement was inconsistent with the no-fault act and that the authority to issue the endorsement must emanate from the Legislature.
II. STANDARD OF REVIEW
Whether a party has standing is a question of law that we review de novo.
III. ANALYSIS
a. JUSTICIABILITY
Our tripartite system of government is constitutionally established in both our state and federal constitutions. US Const, art III, § 1 confers upon the courts only “judicial power”; US Const, art III, § 2 limits the judicial power to “[c]ases” and “[c]ontroversies.” Similarly, our state constitution, Const 1963, art 3, § 2, provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
In Nat’l Wildlife, this Court described and defined the Court’s constitutionally assigned “judicial power”:
The “judicial power” has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making. [471 Mich 614 -615.]
In seeking to make certain that the judiciary does not usurp the power of coordinate branches of government, and exercises only “judicial power,” both this Court and the federal courts have developed justiciability doctrines to ensure that cases before the courts are appropriate for judicial action.
Federal courts have held that doctrines such as standing and mootness are constitutionally derived and jurisdictional in nature, because failure to satisfy their elements implicates the court’s constitutional authority to exercise only “judicial power” and adjudicate only actual cases or controversies.
Likewise, our case law has also viewed the doctrines of justiciability as affecting “judicial power,” the absence of which renders the judiciary constitutionally powerless to adjudicate the claim.
“The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that*373 opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” [Citation omitted.]
Similarly, in Novi v Robert Adell Children’s Funded Trust,
Where the facts of a case make clear that a litigated issue has become moot, a court is, of course, bound to take note of such fact and dismiss the suit, even if the parties do not present the issue of mootness. “ 1 “Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding.” ’ ” Because “ ‘[t]he judicial power... is the right to determine actual controversies arising between adverse litigants,’ ” a court hearing a case in which mootness has become apparent would lack the power to hear the suit. [Citations omitted.][21 ]
Because “the most critical element” of the “judicial power” requires that a case contain a genuine controversy between the parties,
In count I of their amended petition, petitioners challenge appellants’ policy endorsement as violating the rights of appellants’ insureds. Thus, count I of the petition concerns third-party standing — whether petitioners may litigate to vindicate the rights of others.
The general rule is that a litigant cannot vindicate the rights of a third party.
As is often the case with general rules, there are recognized exceptions. While third-party standing is generally disfavored, federal jurisprudence has permitted, under certain limited circumstances, a litigant to assert the rights of another. In addition to requiring
Michigan’s third-party standing jurisprudence is considerably less developed. In Mary v Lewis,
As a general rule, one party may not raise the denial of another person’s constitutional rights... . Defendant quotes portions of Justice Brennan’s dissent in Village of Belle Terre v Boraas,416 US 1 ;94 S Ct 1536 ;39 L Ed 2d 797 (1974), where two exceptions to this general rule are discussed: first, those situations where there is evidence that the direct consequence of the denial of the constitutional rights of the other would impose substantial economic injury upon the party asserting the right; second, those instances where the litigant’s interest and the other’s interest intertwine and the latter’s rights may not be*377 effectively vindicated in any other manner because they are capable of evading constitutional review.
In this case the bank does not show how it qualifies under either of these exceptions.... We therefore conclude that the bank has no standing to interpose the due process rights of the principal defendant regarding the prejudgment garnishment. [399 Mich at 416 .]
Thus, the Mary Court would permit jus tertii where a litigant could establish an economic injury, show that the interests between the litigant and the party possessing the right “intertwine,” and show that the third party’s rights “are capable of evading constitutional review.”
In our judgment, the test utilized by the Mary Court is analytically deficient. Requiring that a litigant establish an injury, economic or otherwise, is merely a component of our traditional standing doctrine.
Accordingly, we adopt the traditional federal test for third-party standing as articulated in Tesmer. A party seeking to litigate the claims of another must, as an initial matter, establish standing under the test established in Lee, supra
As applied to the facts of this case, petitioners cannot meet the requirements of third-party standing and cannot litigate the rights of appellants’ insureds. Assuming arguendo that petitioners could satisfy the Lee elements,
c. RIPENESS
The doctrine of ripeness is closely related to the doctrine of standing, as both justiciability doctrines assess pending claims for the presence of an actual or imminent injury in fact.
Count II of the petitioners’ petition asserts that appellants’ managed care option violates the rights of chiropractic providers, including petitioners’ membership. As a nonprofit organization, petitioners have standing to litigate on behalf of their members to the degree that their members would have standing as individual plaintiffs.
The ripeness doctrine is supported by both constitu
Petitioners’ allegation that appellants’ policy endorsement violates the rights of their members in violation of MCL 500.3157 is not yet ripe for review. Nothing in the record before us indicates that petitioners’ members have in fact been reimbursed at less than a reasonable amount. The lack of ripeness is further buttressed by the particularly fact-intensive nature of petitioners’ claim. MCL 500.3157 provides that chiropractors “may charge a reasonable amount” for services rendered. Petitioners have the burden of establishing the reasonableness of their members’ charges in order to impose liability on the insurer.
IV CONCLUSION
Issues of justiciability concern the judiciary’s constitutionally delineated jurisdiction to exercise only “judicial power” and hear only cases involving an actual controversy. Therefore, questions of justiciability may be raised at any stage in the proceedings and may not be waived by the parties.
Regarding count I, we hold that petitioners do not satisfy the test for third-party standing, and may not litigate on behalf of appellants’ insureds. In count II, petitioners assert the rights of their members. Assuming that petitioners could otherwise litigate the claims of their members, petitioners have not established an actual or imminent injury; thus, 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.
Notes
Because we dispose of this case on the basis of standing and ripeness, we do not address the substantive merits of appellants’ appeal.
The policy option was deemed approved after the Commissioner failed to act within 30 days after the endorsement was submitted for approval pursuant to MCL 500.2236(1).
Petitioners’ amended petition contained four counts; however, only the two counts referenced above are relevant to this appeal. As noted, count I alleged that the endorsement violated the rights of insureds and count II alleged that the endorsement violated the rights of chiropractic providers. Count III alleged that the $500 deductible imposed when a policyholder sought treatment from a nonnetwork provider was a penalty, which “potentially imposes a tremendous hardship on insureds.” However, following an adverse decision by the Commissioner, petitioners did not seek review of count III in the circuit court. Count IV challenged appellants’ refusal to pay for chiropractic care in favor of allegedly comparable care provided by osteopathic physicians. This issue, which was not addressed by the Commissioner, was resolved in petitioners’ favor in Sprague v Farmers Ins Exch,
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
Nat’l Wildlife, supra; Lee, supra.
Wayne Co v Hathcock,
Const 1963, art 4, § 1.
Const 1963, art 5, § 1.
Const 1963, art 6, § 1. As this Court noted in Anway v Grand Rapids R Co,
Justiciability doctrines such as standing, “ ‘ “mootness, ripeness, political question, and the like — relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our
The doctrine of standing requires “the existence of a party’s interest in the outcome of litigation that will ensure sincere and vigorous advocacy.” House Speaker v State Admin Bd,
Ripeness prevents the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Thomas v Union Carbide Agricultural Products Co,
Mootness precludes the adjudication of a claim where the actual controversy no longer exists, such as where “ ‘the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Los Angeles Co v Davis,
Lewis v Casey,
Reno, supra (noting that ripeness question may be raised on the Court’s own motion, and that the Court cannot be bound by the parties); Lewis, supra (standing not subject to waiver); Nat’l Org for Women, Inc v Scheidler,
In contrast, an administrative agency does not possess “judicial power”; rather, the authority of the administrative agency is derived from the statute that created it. Holloway v Ideal Seating Co,
See also Justice Weaver’s lead opinion in Detroit Fire Fighters Ass’n v Detroit,
Nat’l Wildlife, supra at 615.
Lee, supra at 737.
This notion of “constitutional jurisdiction” is conceptually distinct from “subject-matter jurisdiction.” The term “jurisdiction” is broadly defined as “the authority which the court has to hear and determine a case.” Ward v Hunter Machinery Co,
We note that some recent Court of Appeals cases have erroneously equated standing with capacity to sue for the purposes of dispositive motions under MCR 2.116(C)(5). See, for example, Rogan v Morton,
United States v Corrick,
See People v Smith,
Kowalski v Tesmer,
Id. (citation omitted).
Singleton v Wulff,
Powers v Ohio,
Id.; Tesmer, supra at 130.
In People v Rocha,
See footnote 13.
See Federated Publications, Inc v City of Lansing,
See footnote 13.
Petitioners’ amended petition maintains that petitioners are “unable to obtain reasonable access to no-fault insureds.” For the purposes of this opinion, we do not address whether this claimed injury is a legally protected interest, as required by Lee.
Petitioners maintain that their members “provide reasonably necessary medical care” to appellants’ insureds. The patient-physician relationship is frequently deemed sufficiently intimate to permit third-parly standing. See Singleton, footnote 30 of this opinion (asserting rights of female patients regarding abortion); Griswold v Connecticut,
See Warth v Seldin, supra,
See Renne v Geary,
“[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Flast v Cohen,
“[Rjipeness is peculiarly a question of timing.” Blanchette v Connecticut Gen Ins Corps,
Nat’l Wildlife, supra,
To the degree that petitioners seek relief based on the customary charges of their membership, the Court of Appeals panel below determined that petitioners’ argument failed in light of Advocacy Org for Patients & Providers v Auto Club Ins Ass’n,
As noted in footnote 45 of this opinion, the statute permits a medical provider to charge a reasonable amount for its services. MCL 500.3157 provides:
A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance, and a person or institution providing rehabilitative occupational training following the injury, may charge a reasonable amount for the products, services and accommodations rendered. The charge shall not exceed the amount the person or institution customarily charges for like products, services and accommodations in cases not involving insurance.
See Nat’l Park Hospitality Ass’n v Dep’t of Interior, 538 US 803, 807;
Nat’l Wildlife, supra,
Warth v Seldin,
Nasser v Auto Club Ins Ass’n,
Id.
See Johnson v Muskegon Hts,
Concurrence Opinion
(concurring in the result only). I agree with the result reached by the majority. However, I continue to have concerns with the judicial test for standing this
The test in Lee incorporates the requirements set forth in Lujan v Defenders of Wildlife,
By adopting the Lujan “case” and “controversy” rule, the Court creates impediments to access to Michigan courts not found in our Constitution. There is no mandatory particularized injury requirement for standing under either the federal or state constitutions. See my opinion in Nat’l Wildlife, supra at 682-683.
I still believe that Michigan’s standing requirements before Lee were sufficient and that Lee wrongly blocks access to our state courts.
Concurrence Opinion
(concurring with the result only and dissenting in part). I concur with the result reached by the majority. But I strongly dissent from its reasoning and analysis.
In Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
Today the majority is again expanding its earlier, incorrect, decisions in Lee v Macomb Co Bd of Comm’rs,
The majority now compounds these errors by transforming the prudential doctrines of mootness
When the mootness and ripeness doctrines are viewed as prudential limits, a state court has discretion in applying those doctrines. By contrast, the “case or controversy” clause in US Const, art III, § 2 requires federal courts to dismiss cases that are moot or not ripe. By transforming the doctrines of mootness and ripeness into constitutional requirements, the majority requires
The majority states, albeit in dicta, that the mootness doctrine is a justiciability doctrine that concerns the judiciary’s constitutional jurisdiction to adjudicate cases. Ante at 370-371, 374. But shifting mootness from a prudential doctrine to a constitutional doctrine conflicts with this Court’s most recent decisions concerning mootness. In both In re Midland Publishing Co, Inc,
The majority asserts that the ripeness doctrine “is supported by both constitutional and prudential principles.” Ante at 380-381. In the federal courts the ripeness doctrine is based on both art III “case or
For these reasons I concur only in the result of the majority opinion, and dissent from the majority’s reasoning and analysis that mistakenly transforms the prudential doctrines of mootness and ripeness into constitutionally based doctrines that affect the jurisdiction of the Court.
“Generally, an action is considered ‘moot’ when it no longer presents a justiciable controversy because issues involved have become academic or dead.” Black’s Law Dictionary (6th ed), p 1008.
Ripeness refers to the threshold conditions that must exist before a dispute is sufficiently mature to enable a court to decide it on the merits. Maraist, Environmental and land use law: The ripeness doctrine in Florida land use law, 71 Fla B J 58 (February, 1997).
Concurrence Opinion
(concurring with part of the result and dissenting in part). I concur with the result reached by the majority with respect to count I of the petition. However, I respectfully dissent from the majority’s
Concurrence Opinion
(concurring in part and dissenting in part). I concur in both the analysis and the result reached by the lead opinion with respect to count I of the petition. However, with respect to count II, I do not believe that the traditional justiciability analysis that is normally applied to inquiries under Const 1963, art 6, § 1 is necessarily sufficient to dispose of the questions presented. Because I would order additional briefing and reargument on these questions, I cannot join in the lead opinion’s analysis and results with respect to count II.
I. BACKGROUND
Intervening respondents Farmers Insurance Exchange and Mid-Century Insurance Company offered an endorsement to their no-fault automobile policies in which insureds agreed to accept medical care from a network of preferred provider organizations (PPOs) in exchange for a 40 percent discount in their premiums. Petitioners Michigan Chiropractic Council and Michigan Chiropractic Society filed a request with respondent Commissioner of the Office of Financial and Insurance Services to conduct a contested-case hearing
The commissioner concluded that there was nothing improper about the endorsement and declined to conduct a hearing. Included in the commissioner’s written order were findings of fact and conclusions of law addressing several of petitioners’ arguments. With respect to petitioners’ claim that the endorsement violated the rights of the insureds (count I), the commissioner concluded that the endorsement was not inherently inconsistent with MCL 500.3107 (setting forth the type of benefits a no-fault insurer is liable for under the act). With respect to petitioners’ claim that the endorsement violated the rights of medical providers (count II), the commissioner concluded that nothing in the no-fault act, including MCL 500.3157 (detailing allowable provider charges), conferred the right on any provider to be chosen to provide care, that nothing in the endorsement conflicted with the requirement that no-fault insurers pay reasonable and customary charges, and that the endorsement did not unreasonably or deceptively affect the risk purportedly assumed.
The trial court reversed the commissioner, ruling that the endorsement was inconsistent with the no-fault act, and the Court of Appeals affirmed in a published opinion. Mich Chiropractic Council v Comm’r of the Office of Financial and Ins Services,
(1) whether an optional managed care endorsement such as that offered by intervenors is permissible under the no-fault act, MCL 500.3101 et seq., (2) whether the Court of Appeals erred in relying on its finding that the endorsement is potentially deceptive and misleading, (3) whether petitioners have standing to bring their petition, in light of some number of their members having participated in the managed care program, or any other reason affecting standing, and whether petitioners have standing with regard to all or only some of the counts in their petition, and (4) the standard of review to be applied by the circuit court to the administrative decision denying the petition. [472 Mich 899 (2005).]
II. STANDARD OF REVIEW
Whether a party has standing and whether a dispute falls within the scope of the “judicial power” are constitutional questions, which we review de novo. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co,
III. ANALYSIS
The lead opinion focuses on justiciability inquiries usually raised in the context of questions regarding the scope of this Court’s “judicial power.” Const 1963, art 6, § 1. As noted by the lead opinion, whether the resolution of a case is within the “judicial power” is usually the dispositive inquiry with respect to whether this Court possesses jurisdiction over a claim, i.e., whether the claim is justiciable. Ante at 373-374. The “judicial power” is traditionally understood as the authority of the courts to adjudicate cases or controversies of, and to provide meaningful relief to, parties who have a con
However, while most matters cognizable by this Court fall within this traditional scope of the “judicial power,” our jurisdiction is not always so defined. In certain instances, the Michigan Constitution specifically permits or requires the judiciary to take cognizance of actions that fall outside the traditional understanding of the “judicial power.” For instance, Const 1963, art 3, § 8 permits this Court to render advisory opinions “as to the constitutionality of legislation after it has been enacted into law hut before its effective date.”
With this in mind, I believe that significant questions arise with respect to whether the judiciary can— or must— take cognizance of the petitioners’ claims under Const 1963, art 6, § 28, which, at least on its face, does not seem to require that we engage in the usual
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
The use of the word “shall” indicates a mandatory and imperative directive. Burton v Reed City Hosp Corp,
A person aggrieved by a final order, decision, finding, ruling, opinion, rule, action, or inaction provided for under this act may seek judicial review in the manner provided for in chapter 6 of the administrative procedures act of 1969,1969 PA 306 , MCL 24.301 to 24.306. [MCL 500.244(1).]
The APA, in turn, provides that
[w]hen 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. [MCL 24.301.]
Here, the commissioner denied petitioners’ request for a contested-case hearing, finding that they had failed to demonstrate probable cause in support of their request. However, rather than simply declining to hold a hearing, the commissioner proceeded to conclude, as a matter of law, that respondents’ PPO option did not violate the Insurance Code.
In light of the foregoing then, a number of questions arise:
(1) Does the fact that we are dealing with a “final decision^ ... of [an] administrative officer or agency,” Const 1963, art 6, § 28, authorize judicial review of the commissioner’s order independently of the justiciability inquiry required for cases traditionally heard pursuant to the “judicial power”? In other words, may this Court take cognizance of petitioners’ claims by virtue of Const 1963, art 6, § 28 and the APA, without regard to whether these claims are ripe and without regard to whether the parties have Cleveland Cliffs standing? Indeed, must we take cognizance of these claims? Moreover, if Const 1963, art 6, § 1 does require the judiciary to consider a case such as the instant one, does this
(2) Notwithstanding Const 1963, art 6, § 28, to what extent, if any, is the commissioner’s decision subject to judicial review? In addition to presenting a significant issue concerning the relationship between an administrative agency and the judicial branch of government, this case presents a significant issue concerning the relationship between an administrative agency and the legislative branch of government, namely, whether the Legislature intended that the commissioner’s decision to hold a contested-case hearing, or not, constitutes an entirely discretionary and unreviewable decision.
It could be argued, perhaps, that, even if we concluded that petitioners had satisfied justiciability requirements, petitioners would still lack a remedy because the only remedy this Court could conceivably provide would be to order the commissioner to hold a contested-case hearing. However, on initial review, even that relief may be unavailable because the commissioner’s decision whether to hold a contested-case hearing would seem to be a discretionary one under MCL 500.2028 and MCL 500.2029, which provide, respectively:
Upon probable cause, the commissioner shall have power to examine and investigate into the affairs of a person engaged in the business of insurance in this state to determine whether the person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by sections 2001 to 2050. [MCL 500.2028 (emphasis added).]
*395 When the commissioner has probable cause to believe that a person engaged in the business of insurance has been engaged or is engaging in this state in an unfair method of competition, or an unfair or deceptive act or practice in the conduct of his business, as prohibited by sections 2001 to 2050, and that a hearing by the commissioner in respect thereto would be in the interest of the public, he shall first give notice in writing, pursuant to Act No. 306 of the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the Michigan Compiled Laws, to the person involved, setting forth the general nature of the complaint against him and the proceedings contemplated pursuant to sections 2001 and 2050. [MCL 500.2029 (emphasis added).]
The “nondelegation doctrine” forbids the delegation of legislative powers to the executive or judicial branches. Taylor v Gate Pharmaceuticals,
MCL 500.2028 and MCL 500.2029 suggest that the commissioner need not hold a hearing except on “probable cause” to believe that unfair practices have occurred or are occurring. Thus, it seems that the commissioner’s determination of probable cause is the critical event. We noted in Warda, supra at 334, that the courts have no authority to compel an actor belonging to another branch of government to undertake a decision or determination when such decision or determination is purely discretionary. The question naturally arises: Does the commissioner’s probable cause determination constitute a purely discretionary determination? Or has the Legislature provided, either explicitly or implicitly, any standards to guide this determination?
In Warda, we addressed the obligation of a city council (a legislative entity) to reimburse a police officer for legal fees incurred in defending himself against criminal charges. The officer sought, and the city council denied, reimbursement pursuant to MCL 691.1408(2), which provides:
When a criminal action is commenced against an officer or employee of a governmental agency based upon the conduct of the officer or employee in the course of employment, if the employee or officer had a reasonable basis for believing that he or she was acting within the scope of his or her authority at the time of the alleged conduct, the*397 governmental agency may pay for, engage, or furnish the services of an attorney to advise the officer or employee as to the action, and to appear for and represent the officer or employee in the action. [Emphasis added.]
In determining that the city council’s choice was a “purely discretionary” decision that was not subject to judicial review absent some constitutional infirmity, we reasoned:
The use of the word “may” in § 8 makes clear that the decision to pay an officer’s attorney fees is a matter left to the discretion of the municipality. Further, we note that the statute does not limit or qualify the word “may” (with, for instance, a requirement of reasonableness) or provide any other standards by which that discretion is to be exercised. As such, the Flushing city council had full discretion under MCL 691.1408(2) in choosing whether to reimburse plaintiffs attorney fees. [Warda, supra at 332.]
We also noted that
[t]he exercise of the “judicial power” by this Court, Const 1963, art 6, § 1, contemplates that there will be standards —legally comprehensible standards — on the basis of which agency decisions can be reviewed. Whether such standards consist of the provisions of the constitution, or the provisions of other pertinent laws, a judicially comprehensible standard is required in order to enable judicial review. [Id. at 339.]
Because the Legislature did not include any meaningful standard by which a court could review the exercise of the municipality’s discretion, we concluded that the city council’s decision to deny reimbursement was not subject to judicial review.
Unlike the standardless discretion statutorily afforded the municipality in Warda, however, the relevant statutes here provide that “[u]pon probable cause, the commissioner shall have power to examine and investí
In light of this language, can it be said that “probable cause” is, in fact, a standard being employed to guide the commissioner’s discretion? Or did the Legislature merely intend that “probable cause” serve to define a quantum of proof, and that the commissioner’s decision to hold a contested-case hearing is purely discretionary? “Probable cause” is a concept normally found in the criminal law,
If we were to conclude that the commissioner’s ultimate decision in this case— denying the petition for a contested-case hearing and ruling that the PPO option was valid— was authorized by law— i.e., because no probable cause was found, the commissioner was not required to hold a hearing— is judicial review precluded upon that determination? Or does the ultimate question remain whether this is a “case[] in which a hearing is required”? Const 1963, art 6, § 28. If the latter is the case, would that require that we review the commissioner’s determination of a lack of probable cause? If so, would that decision be reviewed under the standard of “competent, material and substantial evidence on the whole record”? Have petitioners here shown that they have actually been harmed by the endorsement at issue, such that the commissioner’s determination was not supported by “competent, material and substantial evidence on the whole record”? Must they?
(3) Of what significance are the commissioner’s legal conclusions apart from his decision not to hold a contested-case hearing? Even if we were to conclude that the commissioner’s probable cause determination was discretionary and therefore unreviewable, it appears that MCL 500.2028 and MCL 500.2029 are not the only provisions relied on by the commissioner in reaching the decision. The commissioner also asserted that he possessed the authority to withdraw approval of insurance policy forms pursuant to MCL 500.2236(5). That provision provides:
Upon written notice to the insurer, the commissioner may disapprove, withdraw approval or prohibit the issu*400 anee, advertising, or delivery of any form to any person in this state if it violates any provisions of this act, or contains inconsistent, ambiguous, or misleading clauses, or contains exceptions and conditions that unreasonably or deceptively affect the risk purported to be assumed in the general coverage of the policy. The notice shall specify the objectionable provisions or conditions and state the reasons for the commissioner’s decision. If the form is legally in use by the insurer in this state, the notice shall give the effective date of the commissioner’s disapproval, which shall not be less than 30 days subsequent to the mailing or delivery of the notice to the insurer. If the form is not legally in use, then disapproval shall be effective immediately.
The commissioner proceeded to conclude— apparently pursuant to his authority under MCL 500.2236— that the PPO option did not violate the Insurance Code. With respect to petitioners’ claim that the endorsement violated the rights of insureds (count I), the commissioner found that the endorsement was not inherently inconsistent with MCL 500.3107. With respect to petitioners’ claim that the endorsement violated the rights of medical providers (count II), the commissioner concluded that nothing in the no-fault act, including MCL 500.3157, conferred the right on any provider to be chosen to provide care, that nothing in the endorsement conflicts with the requirement that no-fault insurers pay reasonable and customary charges, and that the endorsement does not unreasonably or deceptively affect the risk purportedly assumed.
Thus, it appears that the commissioner did not merely decline to hold a contested-case hearing; rather, he also affirmatively reached a number of legal conclusions. Because petitioners are challenging these conclusions, and not simply the failure to hold a hearing, 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
(4) Finally, are petitioners even “aggrieved” pursuant to MCL 500.244(1)? How is this determination made? Might this ultimately boil down to the equivalent of a justiciability inquiry? That is, can it be argued that an adverse decision at the administrative level is the equivalent of a “present injury” required to meet the standing and ripeness requirements?
TV. CONCLUSION
I do not believe that the justiciability analysis that is traditionally applied to inquiries under Const 1963, art 6, § 1 is necessarily dispositive in this case. Rather, a number of constitutional questions concerning the administrative process in Michigan exist apart from this analysis, and these questions should be resolved for a proper determination of the case before us. The lead opinion fails to address, much less answer, these questions. As such, I believe additional consideration by this Court is warranted, and I would direct the parties to file supplemental briefs on the issues raised in this opinion.
The commissioner’s findings with respect to counts III and IV are omitted because those findings are not at issue on appeal here.
That provision provides, in its entirety:
Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date. [Const 1963, art 3, § 8.]
The justices in the lead opinion apparently believe that, because the parties have not raised this issue, we need not reach it. However, it has long been the practice of this Court to raise issues sua sponte where consideration of such issues is necessary to a full and fair determination of the case before it. See, e.g., City of Dearborn v Bacila,
Moreover, questions relating to subject-matter jurisdiction, in particular questions of a constitutional dimension, may be raised at any time by the parties, or sua sponte by a court. Nat’l Wildlife Federation, supra at 630; MCR 2.116(D)(3). Subject-matter jurisdiction involves the power of a court to hear and determine a cause or matter. Langdon v Wayne Circuit Court Judges,
In so doing, the commissioner was apparently acting pursuant to his authority under MCL 500.2236(5), which provides, in part:
Upon written notice to the insurer, the commissioner may disapprove, withdraw approval or prohibit the issuance, advertís*393 ing, or delivery of any form to any person in this state if it violates any provisions of this act, or contains inconsistent, ambiguous, or misleading clauses, or contains exceptions and conditions that unreasonably or deceptively affect the risk purported to be assumed in the general coverage of the policy.
The commissioner noted in his decision that he possessed the authority to withdraw approval of insurance policy forms pursuant to MCL 500.2236, and that in their complaint, petitioners specifically sought the withdrawal of the endorsement at issue under that section. Because the commissioner’s findings and conclusions went far beyond what was necessary to simply deny petitioners’ request for a contested-case hearing under MCL 500.2028 and 500.2029, I can only conclude that such findings were made pursuant to his authority under MCL 500.2236.
As we noted in Taylor, supra at 8-9:
A simple statement of this doctrine is found in Field v Clark,143 US 649 , 692;12 S Ct 495 ;36 L Ed 294 (1892), in which the United States Supreme Court explained that “the integrity and maintenance of the system of government ordained by the Constitution” precludes Congress from delegating its legislative power to either the executive branch or the judicial branch. This concept has its roots in the separation of powers principle underlying our tripartite system of government. Yet, the United States Supreme Court, as well as this Court, has also recognized “that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress [or our Legislature] from obtaining the assistance of the coordinate Branches.” Mistretta v United States,488 US 361 , 371;109 S Ct 647 ;102 L Ed 2d 714 (1989).
We have defined “probable cause” as “ ‘a reasonable ground of suspicion, supported by circumstances strong [in themselves] to warrant a cautious person in the bebef that the accused is guilty of the offense charged.’ ” See People v Richardson,
At first blush, this position would appear to be consistent with the use of “aggrieved” in MCR 7.203(A), as interpreted recently in Federated Ins Co v Oakland Co Rd Comm,
(1) A final judgment or final order of the circuit court, or court of claims, as defined in MCR 7.202(6), except a judgment or order of the circuit court
(a) on appeal from any other court or tribunal;
(b) in a criminal case in which the conviction is based on a plea of guilty or nolo contendere;
An appeal from an order described in MCR 7.202(6)(a)(iii)-(v) is limited to the portion of the order with respect to which there is an appeal of right.
(2) A judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule.