Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

March 15, 2019

156270

WILLIAM R. HENDERSON and All Others

Similarly Situated, Plaintiffs-Appellants,

v SC: 156270

COA: 332314 

Ingham CC: 15-000645-AA

CIVIL SERVICE COMMISSION and

DEPARTMENT OF CORRECTIONS,

Defendants-Appellees. 

_________________________________________/

On January 23, 2019, the Court heard oral argument on the application for leave to 

appeal the August 15, 2017 judgment of the Court of Appeals. On order of the Court, the 

application is again considered, and it is DENIED, because we are not persuaded that the 

questions presented should be reviewed by this Court. 

MARKMAN, J. (concurring). 

I concur with this Court’s order denying leave to appeal. As Justice CAVANAGH

observes in her concurring statement, although the predecessor Attorney General 

previously argued in this Court that the test set forth in Brandon Sch Dist v Mich Ed 

Special Servs Ass’n, 191 Mich App 257, 263 (1991) for determining whether an agency 

decision is “authorized by law” is inconsistent with the common understanding of Const 

1963, art 6, § 28, the present Attorney General, as is her prerogative, expressly 

abandoned that position at oral argument.1

 Furthermore, as Justice CAVANAGH also 

observes, a review for whether the decision is “arbitrary and capricious”-- which 

constitutes the fourth component of the Brandon test-- contemplates a “minimum level of 

review of the evidentiary record in order to ensure that there is some evidentiary support 

for [the] decision.” I write separately only to note that this Court by its order today does 

not decide that an “arbitrary and capricious” review does comport with the “authorized 

by law” standard, as the Court of Appeals held in Brandon. 

 1 Specifically, the Assistant Attorney General stated at oral argument in this regard that, 

in the Attorney General’s own supplemental briefing to this Court, “we took the position 

that it would not have been understood at the time [of the Constitution’s ratification in 

1963] to include whether the decision is arbitrary and capricious. I can represent to the 

Court at this time that we are no longer advancing that argument, it is not necessary to 

reach that issue in this case, [and] we are not asking the Court to reach that issue . . . .” 
2

For the following reasons, it is at least reasonably arguable that the “authorized by 

law” standard does not include an “arbitrary and capricious” review. First, Black’s Law 

Dictionary (5th ed) defines “authorize” as “[t]o empower; to give a right or authority to 

act. . . . ‘Authorized’ is sometimes construed as equivalent to ‘permitted’ . . . .” From 

this definition, “authorized by law” essentially means “empowered by law to act.” 

Arguably, whether an agency is empowered by law to act is determined only by reference 

to the presence or absence of a constitutional provision, statute, or regulatory enactment 

sustaining the underlying authority of the agency action.

Second, the term “authorized by law” appears in multiple (specifically, six) other 

sections of our Constitution. And in those sections, “authorized by law” is used in a 

manner consistent with the above understanding of that phrase, i.e., as meaning only 

“empowered by law to act.” For instance, Const 1963, art 12, § 2 provides that petitions 

to amend the Constitution “shall be filed with the person authorized by law to receive the 

same at least 120 days before the election at which the proposed amendment is to be 

voted upon.” (Emphasis added.) This provision sets forth a straightforward reference to 

the person empowered by statute, the Secretary of State, to receive amendment petitions. 

See MCL 168.471. See also Const 1963, art 2, § 9; Const 1963, art 9, § 31; Const 1963, 

art 9, § 40; Const 1963, art 9, § 41; and Const 1963, art 9, § 42. There is no obvious 

reason why “authorized by law” in Const 1963, art 6, § 28 should be understood in a 

disparate manner from other constitutional provisions in which it appears to include 

review of the evidentiary record. 

Third, concluding that the “authorized by law” standard permits courts to consider 

the evidentiary record to assess agency findings of fact would seem to constitute a 

somewhat unorthodox reading of Const 1963, art 6, § 28 as a whole. That provision 

includes one, and only one, clause concerning court review of agency findings of fact: 

“[I]n cases in which a hearing is required, whether the same are supported by competent, 

material and substantial evidence on the whole record.” That is, Const 1963, art 6, § 28 

explicitly includes a provision allowing review of the evidentiary record, and that 

provision only pertains to “cases in which a hearing is required.” By negative 

implication alone, that would arguably constitute the only circumstance in which review 

of the evidentiary record is allowed.

Finally, although obviously not binding upon our interpretation of the 

Constitution, federal courts have asserted that an “arbitrary and capricious” standard of 

review and the “substantial evidence” test under the federal Administrative Procedure 

Act, 5 USC 551 et seq., are similar, if not identical, in assessing agency findings of fact. 

See, e.g., AllCare Home Health, Inc v Shalala, 278 F3d 1087, 1089 (CA 10, 2001) (“The 

arbitrary and capricious standard of review has been equated to the substantial evidence 

test.”). Thus, if this Court included an “arbitrary and capricious” review in the 

“authorized by law” standard under Const 1963, art 6, § 28, it would conceivably lead to 

a peculiar outcome-- to wit, the provision would explicitly provide for a “substantial 

evidence” test in cases in which a hearing is required and it would implicitly provide for 
3

the same examination of the record through an “arbitrary and capricious” review in cases 

in which a hearing is not required. Can this be what was understood by the ratifiers of 

our Constitution? 

CAVANAGH, J. (concurring). 

I concur in the denial of leave to appeal in this case, but write separately to clarify 

the appropriate evidentiary review of agency decisions under the “authorized by law” 

standard of Const 1963, art 6, § 28. 

Const 1963, art 6, § 28 provides for “direct review by the courts” of whether 

agency final decisions, findings, rulings and orders are “authorized by law . . . .” I agree 

with the Court of Appeals that, because no hearing was held in this case, the circuit 

court’s review of the Civil Service Commission’s decision and findings should have been 

limited to whether they were authorized by law and not extended to apply the broader 

“competent, material and substantial evidence” test in § 28. As the Court of Appeals 

properly held, and as both parties now agree on appeal, the proper test for determining 

whether a final decision, finding, ruling, or order is authorized by law is the four-factor 

test articulated in Brandon Sch Dist v Mich Ed Special Servs Ass’n, 191 Mich App 257, 

263 (1991).2

 That test asks whether the final decision, finding, ruling or order is (1) “in 

violation of a statute,” (2) “in excess of the statutory authority or jurisdiction of the 

agency,” (3) “made upon unlawful procedures resulting in material prejudice,” or (4) 

“arbitrary and capricious.” Id. A decision is arbitrary and capricious when it (1) “lacks 

an adequate determining principle,” (2) reflects an absence of consideration of significant 

principles or circumstances, or (3) is “freakish or whimsical.” Wescott v Civil Serv 

Comm, 298 Mich App 158, 162 (2012).

I disagree with the Court of Appeals that review of the evidentiary support for an 

agency’s final decision, finding, ruling or order is not proper under “authorized by law” 

review—and notwithstanding that statement, I believe that the Court of Appeals actually 

conducted the appropriate review of the evidentiary record in this case. While the 

“arbitrary and capricious” standard of review necessarily must be more deferential than 

the “competent, material and substantial evidence” standard applicable to decisions 

following hearings, the “arbitrary and capricious” standard must mean something in order 

to effectuate the Constitution’s requirement of direct review. While the exact contours of 

the boundary between “arbitrary and capricious” review and “competent, material and 

substantial evidence” review have proven difficult to define, see 2 Hickman &

 2 While the Civil Service Commission originally argued to this Court that the Brandon

test exceeds the original intent of the constitutional text of Const 1963, art 6, § 28, it 

affirmatively abandoned that position at oral argument.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 March 15, 2019 

t0312

4

Clerk

Pierce, Administrative Law Treatise (6th ed), § 10.4, p 1136, I am unaware of any 

authority that draws those lines in a manner that prohibits any review of the evidentiary 

record.

In order to determine whether an agency’s final decision and findings were 

arbitrary and capricious, the reviewing court must conduct a minimum level of review of 

the evidentiary record in order to ensure that there is some evidentiary support for that 

decision. For example, a reviewing court could not determine whether a decision has 

been made upon unlawful procedures without reviewing what procedures had been used. 

Likewise, a reviewing court could not determine whether a decision lacked an adequate 

determining principle without reviewing the reasoning behind the decision. While a 

reviewing court lacks authority to reweigh the evidence considered by an agency and 

cannot second-guess an agency’s view of the facts or an agency’s application of the 

correct legal standard to those facts, a reviewing court must review the evidentiary record 

in order to determine there was not a complete lack of evidentiary support for an agency’s 

decision and in order to ascertain the determining principle applied by the agency. 

The circuit court did not err in scope by reviewing the evidentiary record. It was 

required to do so to determine whether the Civil Service Commission’s decision was 

authorized by law. Rather, the circuit court erred in manner by failing to afford the Civil 

Service Commission proper deference. Because I believe the errors identified by the 

Court of Appeals discussed manner rather than scope, I concur in the Court’s decision to 

deny leave to appeal.

MCCORMACK, C.J., joins the statement of CAVANAGH, J. 

BERNSTEIN, J., would remand this case to the Court of Appeals to apply the 

standard set forth in Brandon Sch Dist v Mich Educ Special Services Ass’n, 191 Mich 

App 257 (1991).