_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 25, 2008 

MICHIGAN ASSOCIATION OF HOME 

BUILDERS, 

Plaintiff-Appellant, 

v No. 135023 

DIRECTOR OF DEPARTMENT OF 

LABOR & ECONOMIC GROWTH and 

DEPARTMENT OF LABOR & ECONOMIC 

GROWTH,

 Defendants-Appellees, 

and 

MICHIGAN COMMUNITY ACTION 

AGENCY ASSOCIATION, MICHIGAN 

ENVIRONMENTAL COUNCIL, and 

MIDWEST ENERGY EFFICIENCY 

ALLIANCE, 

 Intervening Defendants-Appellees. 

MEMORANDUM OPINION. 

At issue here is whether judicial review of an administrative determination 

in a non-contested case is limited to the administrative record and whether the 

administrative record may be expanded by a remand to the administrative agency 
for additional fact-finding. The Court of Appeals held that judicial review of an 

administrative rule is limited to the administrative record, but stated that the trial 

court could “remand the matter to the department for additional investigation or 

explanation.” Michigan Ass’n of Home Builders v Dep’t of Labor & Economic 

Growth Director, 276 Mich App 467, 479; 741 NW2d 531 (2007). In lieu of 

granting leave to appeal, we affirm the judgment of the Court of Appeals in part, 

vacate it in part, and hold that judicial review of an administrative rule, which by 

definition constitutes a non-contested case, is limited to the administrative record 

and that the administrative record may not be expanded by a remand to the 

administrative agency. 

Administrative determinations are governed by the Administrative 

Procedures Act (APA), MCL 24.201 et seq. An administrative determination is 

categorized as either a contested or a non-contested case. “Contested case” is 

defined as “a proceeding, including rate-making, price-fixing, and licensing, in 

which a determination of the legal rights, duties, or privileges of a named party is 

required by law to be made by an agency after an opportunity for an evidentiary 

hearing.” MCL 24.203(3). A non-contested case would therefore encompass 

administrative determinations that do not fall within the definition of a contested 

case. This case concerns the review of an administrative rule. “A determination, 

decision, or order in a contested case” is specifically exempted from the definition 

of “rule,” MCL 24.207(f), and, therefore, the review of an administrative rule is 

categorized as involving a non-contested case. 

2
 
 

MCL 24.241(1) provides, in pertinent part: “[B]efore the adoption of a rule, 

an agency, or the office of regulatory reform, shall give notice of a public hearing 

and offer a person an opportunity to present data, views, questions, and 

arguments.”1

 MCL 24.264 allows a plaintiff to challenge the validity of a rule in 

an action for a declaratory judgment. There is no provision in the statute 

regarding whether the trial court can expand the record for purposes of review at 

the trial court level or by remanding the matter to the agency. 

For contested cases, the APA sets forth an entire chapter dedicated to the 

procedures for agency hearings, including the taking of witnesses’ testimony. See 

MCL 24.271 through 24.287. The public hearings specified in MCL 24.241(1), 

which are held before the adoption of a rule, are “not subject to the provisions 

governing a contested case.” MCL 24.241(4). Once a plaintiff exhausts the 

administrative remedies in a contested case, the plaintiff is entitled to direct 

judicial review. MCL 24.301. MCL 24.305 specifically provides for the 

expansion of the record in a contested case by way of a remand to the agency: 

If timely application is made to the court for leave to present 

additional evidence, and it is shown to the satisfaction of the court 

that an inadequate record was made at the hearing before the agency 

or that the additional evidence is material, and that there were good 

reasons for failing to record or present it in the proceeding before the 

agency, the court shall order the taking of additional evidence before 

the agency on such conditions as the court deems proper. The 

1

 Executive Order No. 2005-1 abolished the Office of Regulatory Reform 

and transferred its powers, duties, and responsibilities to the State Office of 

Administrative Hearings and Rules. The order is codified at MCL 445.2021. 

3
 
agency may modify its findings, decision or order because of the 

additional evidence and shall file with the court the additional 

evidence and any new findings, decision or order, which shall 

become part of the record. 

There is no similar provision for non-contested cases. The more formal 

procedures called for in contested cases are simply not part of the rulemaking 

process or the process of judicial review of non-contested cases. 

Other states have held that judicial review of non-contested cases is limited 

to the administrative record if there is no express provision of law that allows 

expansion of the record. For example, in Mississippi, “[a]ppellate review of an 

agency decision is limited to the record and the agency’s findings.” Boyles v 

Mississippi State Oil & Gas Bd, 794 So 2d 149, 153 (Miss, 2001). The Minnesota 

Court of Appeals stated: “The scope of review in a pre-enforcement challenge to a 

rule is more restrictive than review of an agency’s decision in a contested 

enforcement proceeding. The court’s review is limited to the record during 

rulemaking.” City of Morton v Minnesota Pollution Control Agency, 437 NW2d 

741, 745-746 (Minn App, 1989) (citation omitted). In Illinois, courts review an 

agency’s promulgation of rules and regulations “on the basis of the rule-making 

record . . . .” Union Oil Co of California v Illinois Pollution Control Bd, 43 Ill 

App 3d 927, 930; 357 NE2d 715 (1976). But see Furlong Cos, Inc v Kansas City, 

189 SW3d 157, 165 (Mo, 2006) (ruling that the evidentiary record may be 

developed before the trial court in a non-contested case on the basis of a state 

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statute that expressly provides that judicial review in non-contested cases is not 

limited to the administrative record). 

 The APA expressly provides for expansion of the record in contested cases. 

MCL 24.305. The absence of a similar provision for non-contested cases strongly 

suggests the limited scope of judicial review in these cases under the legal maxim 

expressio unius est exclusio alterius.

2 Hoerstman Gen Contracting, Inc v Hahn, 

474 Mich 66, 74; 711 NW2d 340 (2006). Accordingly, we hold that judicial 

review of an administrative rule is limited to the administrative record and that the 

administrative record may not be expanded by a remand to the administrative 

3 agency.

2

 “[T]he expression of one thing is the exclusion of another.” Black’s Law 

Dictionary (6th ed). 

3

 In making its determination that judicial review is limited to the 

administrative record, the Court of Appeals concluded that Westervelt v Natural 

Resources Comm, 402 Mich 412; 263 NW2d 564 (1978), constituted a 

nonbinding, plurality opinion. In Westervelt, we considered (1) whether the 

Legislature unconstitutionally delegated certain legislative powers and (2) whether 

an administrative agency exceeded the scope of its authority in promulgating 

administrative rules. The parties stipulated that only legal issues were contested, 

so the trial court’s review would be limited to specified evidence in the 

administrative record. Id. at 450-451 (opinion by Williams, J.). When the trial 

court failed to consider this evidence, we remanded the case for further factual 

findings and held that such findings should be entered into the record. Id. at 452-

453. Three justices signed the lead opinion, and three justices signed a concurring 

opinion that disagreed only with the lead opinion’s analysis of the delegation-ofpowers issue. Id. at 454, 459 (opinion by Ryan, J.). Therefore, the opinion is 

binding regarding the second issue, and the Court of Appeals erred in holding 

otherwise. Westervelt did not hold that the trial court may consider evidence that 

(continued . . .) 

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We affirm the portion of the Court of Appeals judgment determining that 

judicial review is limited to the administrative record, vacate the portion of its 

judgment stating that the trial court can “remand the matter to the department for 

additional investigation or explanation,” and vacate the portion of its judgment 

stating that Westervelt v Natural Resources Comm, 402 Mich 412; 263 NW2d 564 

(1978), is not binding. 

Clifford W. Taylor 

Michael F. Cavanagh 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young 

Stephen J. Markman 

WEAVER, J. I would grant leave to appeal in this case. 

Elizabeth A. Weaver 

(. . . continued) 

was not considered by the administrative agency because the evidence to be 

considered by the trial court was, in fact, part of the administrative record. 

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