Michigan Office of Administrative Hearings and Rules

MOAHR-Rules@michigan.gov

AGENCY REPORT TO THE

JOINT COMMITEE ON ADMNINISTRATIVE RULES (JCAR)

1. Agency Information

Agency name:

Licensing and Regulatory Affairs

Division/Bureau/Office:

Michigan Office Of Administrative Hearings and Rules

Name of person completing this form:

Wendy Wisniewski

Phone number of person completing this form:

517-282-7812

E-mail of person completing this form:

WisniewskiW1@michigan.gov

Name of Department Regulatory Affairs Officer reviewing this form:

Elizabeth Arasim

2. Rule Set Information

MOAHR assigned rule set number:

2021-84 LR

Title of proposed rule set:

Michigan Office of Administrative Hearings and Rules Administrative Hearing Rules

3. Purpose for the proposed rules and background:

MCL 24.242 and 24.245

Agency Report to JCAR-Page 2

The Michigan Office of Administrative Hearings and Rules (MOAHR) 19 part Uniform Hearing

Rules are comprised of general hearing rules in the first part and specific practice areas in the 18 parts

that follow. The general purpose of the rules set is to govern the practice and procedures for all

administrative hearings conducted by MOAHR, allowing for different procedures in specific types of

hearings. The purpose of the proposed changes is to refine certain rules to clarify current practices,

reflect statutory changes and department reorganizations, eliminate duplicative or unnecessary rules,

and promote greater efficiency and fairness. Among the provisions and rules to be amended or

rescinded are as follows:

Part 1: General. The proposed changes to the general rules address opportunities for the electronic or

e-mail filing of documents and service to other parties, and the approved procedure for such filing

and service. The proposed changes also define and limit the use of portable electronic devices during

an administrative hearing. The proposed changes also clarify that denial of a motion for summary

disposition does not need to be in a proposal for decision format to a department director, board, or

final decisionmaker.

Part 2: Tax Tribunal. The proposed changes update certain procedures to reflect current law and

approved practices, such as the electronic payment of filing fees, the exclusion or redaction of

personal identifying information, appeal by statutorily required petition, transfer of appeals from the

small claims division to the entire tribunal, extensions and the default process, notice filing

requirements, prehearing conferences, and mediation.

Part 4: Public Service Commission. The proposed changes reflect new statutory requirements found

in 2016 PA 341 and 2016 PA 342, as well as make minor changes to rules concerning electronic filing

and other housekeeping matters. The proposed rules also rescind rules concerning motor carriers,

because jurisdiction over motor carrier regulation has been transferred to the State Police.

Part 12: Wage and Fringe Benefit Hearings. The proposed changes add references to the Paid

Medical Leave Act, “notice of violation” procedures, and authorized representation at a hearing.

Part 19: Corrections. The proposed changes address the notice of hearing and record evidence

provisions of the hearings and decisions section.

4. Summary of proposed rules:

MCL 24.242 and 24.245

Agency Report to JCAR-Page 3

The Michigan Office of Administrative Hearings and Rules 19-part Uniform Hearing Rules set is

comprised of general hearing rules in the first part and specific practice areas in the 18 parts that

follow. The general purpose of the rules set is to govern the practice and procedures for all

administrative hearings conducted by MOAHR, allowing for different procedures in specific types of

hearings. The purpose of the proposed changes is to refine certain rules to clarify current practices,

reflect statutory changes and department reorganizations, eliminate duplicative or unnecessary rules,

and promote greater efficiency and fairness. Among the provisions and rules to be amended or

rescinded are as follows:

Part 1: General. The proposed changes to the general rules address opportunities for the electronic or

e-mail filing of documents and service to other parties, and the approved procedure for such filing

and service. The proposed changes also define and limit the use of portable electronic devices during

an administrative hearing. The proposed changes also clarify that denial of a motion for summary

disposition does not need to be in a proposal for decision format to a department director, board, or

final decisionmaker.

Part 2: Tax Tribunal. The proposed changes update certain procedures to reflect current law and

approved practices, such as the electronic payment of filing fees, the exclusion or redaction of

personal identifying information, appeal by statutorily required petition, transfer of appeals from the

small claims division to the entire tribunal, extensions and the default process, notice filing

requirements, prehearing conferences, and mediation.

Part 4: Public Service Commission. The proposed changes reflect new statutory requirements found

in 2016 PA 341 and 2016 PA 342, as well as make minor changes to rules concerning electronic filing

and other housekeeping matters. The proposed rules also rescind rules concerning motor carriers,

because jurisdiction over motor carrier regulation has been transferred to the State Police.

Part 12: Wage and Fringe Benefit Hearings. The proposed changes add references to the Paid

Medical Leave Act, “notice of violation” procedures, and authorized representation at a hearing.

Part 19: Corrections. The proposed changes address the notice of hearing and record evidence

provisions of the hearings and decisions section.

5. List names of newspapers in which the notice of public hearing was published and

publication dates:

The Mining Journal – February 1, 2023

Flint Journal – February 2, 2023

Grand Rapids Press – February 2, 2023

6. Date of publication of rules and notice of public hearing in Michigan Register:

11/1/2022

7. Date, time, and location of public hearing:

11/16/2022 09:00 AM at Hearing Room B, 2nd floor, Ottawa Building , Michigan Office of

Administrative Hearings and Rules Ottawa Building, 2nd floor, Hearing Room B 611 W. Ottawa,

Lansing, Michigan 48909-8295

MCL 24.242 and 24.245

Agency Report to JCAR-Page 4

8. Provide the link the agency used to post the regulatory impact statement and cost-benefit

analysis on its website:

https://ARS.apps.lara.state.mi.us/Transaction/RFRTransaction?TransactionID=1342

9. List of the name and title of agency representative(s) who attended the public hearing:

Suzanne Sonneborn, Executive Director, MOAHR

DJ Pascoe, Division Director, MOAHR

Peter Kopke, Administrative Law Judge, Michigan Tax Tribunal

10. Persons submitting comments of support:

Joshua Wease, JD, LLM

Clinical Professor of Law, Director, Alvin L. Storrs Low-Income Taxpayer Clinic

Michigan State University College of Law

11. Persons submitting comments of opposition:

There were no comments of general opposition to the rules.

12. Persons submitting other comments:

Lance Wilkinson

Director, Bureau of Tax Policy

Michigan Department of Treasury

Leah Robinson

Director of Legislative Affairs and Leadership Programming

Michigan Chamber of Commerce

Steven P. Schneider

Honigman LLP

13. Identify any changes made to the proposed rules based on comments received during the

public comment period:

MCL 24.242 and 24.245

Agency Report to JCAR-Page 5

Name &

Organization public hearing

Comments made at Written

Agency Rationale Rule number

for Rule Change & citation

and Description changed

of Change(s)

Comments

Made

1

Lance

Rule 109(1): This The term “email” R 792.10109

Wilkinson

Director,

subrule refers to in Rule 109(3)

filings submitted should be read in

(3)

Bureau of Tax

Policy

“electronically

using a hearing

context with Rule

109(6), which, as

Michigan

Department of

Treasury

system-approved proposed, says:

electronic filing (6) Documents

system” but does and pleadings will

not refer

not be accepted by

email unless

specifically

authorized by the

administrative law

judge,

administrative law

manager, or

pursuant to an

order issued by the

executive director

of the hearing

system.

expressly to

submission by

“email” even

though subrule

(3) expressly

refers to

documents and

pleadings

“submitted by

email.”

To address

Treasury’s

concern, MOAHR

will strike “by

email or by” from

Rule 109(3) and

add “or by email

when specifically

authorized under

subrule (6) of this

rule”.

MCL 24.242 and 24.245

Agency Report to JCAR-Page 6

2

Lance

Rule 109(5): This MOAHR agrees

R 792.10103

Wilkinson

Director,

Bureau of Tax

Policy

subrule describes with this proposed R 792.10109

the acceptable

formats for an

electronic

change and will

strike from Rule

109(5) “An

(5)

Michigan

Department of

Treasury

signature. Please electronic

consider

signature may be

incorporating that an electronic

language into a

symbol attached to

new definition of or logically

“electronic

associated with a

signature” under document or

Rule 103 instead. pleading and

executed or

adopted by a

person with the

intent to sign the

document or

pleading. This

may be a graphic

image of the

signature or text

designated as a

signature, such as

“/s/ John Smith,”

“/s/ John Smith,

Attorney,” or “/s/

John Smith,

Authorized

Representative.”

MOAHR will

instead add this

language to a new

definition of

“electronic

signature” under

Rule 103.

MCL 24.242 and 24.245

Agency Report to JCAR-Page 7

3

Lance

Wilkinson

Director,

Rule 126(1):

Multiple

comments:

MOAHR agrees

with these

proposed changes

R 792.10126

Bureau of Tax

Policy

Michigan

Department of

Treasury

• Change “the” to and will strike

“each” before “the” from Rule

“opposing party” 126(1) and replace

in the newly with “each” before

added language “opposing party”

as there may be in the newly added

more than one

language;

opposing party. MOAHR will also

• The proposed

period of “not

strike “not later

than” from Rule

later than” 7 days 126(1) and replace

is confusing and with “not less

can be

than”.

misinterpreted.

Please consider

changing to “not

less than” as used

in other Rules

(e.g., Rule 253

(2), Rule 275(1)-

(2), and Rule 287

(1))

MCL 24.242 and 24.245

Agency Report to JCAR-Page 8

4

Lance

Wilkinson

Director,

Rule 134(2):

Should the

reference to

MOAHR agrees

with this proposed

change and will

R 792.10134

Bureau of Tax

Policy

Michigan

Department of

Treasury

“failing to attend” strike “attend”

be changed to

“failing to

from Rule 134(2)

and replace with

participate” to be “participate in”.

consistent to the In addition,

Tribunal’s

proposed changes “hearing” is not

to subrule (1) used in Rule 134

which strike the (1) [instead the

because the term

word “attend”?

term “proceeding

is used], MOAHR

will strike

“hearing” from

Rule 134(2) and

replace with “in a

scheduled

proceeding after a

properly served

notice”.

5

Lance

Rule 207: The

The Tax Tribunal R 792.10207

Wilkinson

Director,

Bureau of Tax

Policy

Michigan

Department of

Treasury

heading for this agrees with this

rule includes

“and electronic

proposed change

and will strike

signatures” even “and electronic

though the rule signatures” from

does not contain the title of Rule

an explicit

207 as

reference to an

“electronic”

unnecessary.

signature and the

definition of

“signed” includes

electronic

signatures so just

having the

heading refer to

“signatures” is

sufficient.

MCL 24.242 and 24.245

Agency Report to JCAR-Page 9

6

Leah Robinson

Director of

Legislative

Affairs and

Leadership

Programming

Michigan

Chamber of

Commerce

Steven P.

Requiring a

in order to

subsequently file strike the rule and

an amended

petition creates

unnecessary and sections.

time-consuming

The Tax Tribunal R 792.10221

(3)

change and will

motion to amend agrees with this

renumber

remaining

redundancies.

7

Rule 225(4): The The Tax Tribunal R 792.10225

proposed rules agrees with this (4)

seek to change a change and will

threshold strike “spoken

requirement for with” from Rule

Schneider,

Honigman, LLP

motions for

immediate

225(4) and replace

with “notified.

consideration.

The tribunal

would consider a

motion for

immediate

consideration

only if it would

include a

statement

verifying that the

moving party has

“spoken with”--

not just

“notified”-- all of

the other parties

regarding the

filing of the

motion, as is now

required. See R.

792.10225(4).

The “spoken

with”

requirement is

impractical.

Caller ID is now

ubiquitous.

Unfortunately, if

attorneys are

aware that a

motion for

MCL 24.242 and 24.245

Agency Report to JCAR-Page 10

immediate

consideration

may be sought

and seek to delay

the requested

relief, however

justified, they

may not return

phone calls. In

such a case, the

current

notification

requirement is

met by sending

an email and/or

leaving a

voicemail. If a

simple statement

indicating

notification is not

sufficient, we

would suggest

requiring a

statement to the

effect of: ‘the

moving party has

made good faith

efforts to contact

opposing counsel

via both

telephone and

email, but has

neither reached

opposing counsel,

nor received a

reply.

8

Lance

Rule 227: The

The Tax Tribunal R 792.10227

Wilkinson

Director,

Bureau of Tax

Policy

elimination of the agrees with this

requirement in

subrule (5) that

the petition

change and Rule

227(3)(d)(ii) will

revert back to

Michigan

Department of

Treasury

include a copy of original language

the “assessment and also reference

or other notice” “order” and

being appealed

from is

“decision,” as

provided in MCL

MCL 24.242 and 24.245

Agency Report to JCAR-Page 11

problematic,

205.22(1).

unfair, and could

lead to

unintended

consequences.

For example, this

runs afoul of the

concept of

“notice

pleading” (and

may impair due

process) as the

respondent may

not be able to

ascertain the full

extent of the

matters intended

to be appealed;

particularly if the

petitioner fails to

list or otherwise

describe all of the

assessments or

orders in its

petition. This

could create

undue burdens on

the respondent as

they may have to

determine what

the appeal entails

and prepare for

the broadest

potential scope of

the potential

issues on appeal

and/or tax period

or tax type. In

addition,

removing this

requirement on

the petitioner

could jeopardize

the petitioner’s

appeal under

MCL 205.22, and

MCL 24.242 and 24.245

Agency Report to JCAR-Page 12

the Tribunal may,

likewise, lack

jurisdiction as a

result if the

petitioner did not

list or otherwise

describe the

assessment in its

petition. It is

strongly

recommended

that the current

requirement be

maintained and

that it be

expanded to also

reference an

“order” and

“decision” as

provided in MCL

205.22(1) and

consistent with

Rule 227(3).

The rule should

also reference

“order” and

“decision,” as

provided in MCL

205.22(1).

9

Lance

Wilkinson

Director,

Bureau of Tax

Policy

Michigan

Department of

Treasury

Rule 277(3): The The Tax Tribunal R 792.10277

Rule should also agrees with this (3)

reference

“decision,” as

change and will

add “decision” to

provided in MCL Rule 277(3).

205.22(1)

14.Date report completed:

5/25/2023

MCL 24.242 and 24.245