DPG YORK, LLC v. STATE, 128656 (Mich. 12-28-2005)

707 N.W.2d 596

DPG YORK, LLC, MICHAEL HOROWITZ, STEVEN FRIEDMAN, RICHARD LEWISTON, RYAN ROSETT, and ALBERT LUDWIG, Plaintiffs-Appellants, v. STATE OF MICHIGAN, STATE ADMINISTRATIVE BOARD, SECRETARY OF THE STATE ADMINISTRATIVE BOARD, DEPARTMENT OF MANAGEMENT AND BUDGET, and DIRECTOR OF THE MICHIGAN DEPARTMENT OF MANAGEMENT AND BUDGET, Defendants-Appellees.

No. 128656.Supreme Court of Michigan.
December 28, 2005.

SC: 128656, COA: 260337, Ingham CC: 04-001392-CZ.

On order of the Court, the application for leave to appeal the February 15, 2005 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE the Court of Appeals order and REMAND this case to the Court of Appeals for plenary consideration. We DIRECT the Court of Appeals to issue an abbreviated briefing schedule to the parties and to issue its decision within 45 days of the date of this order. Among the issues to be addressed, the Court of Appeals shall consider whether 2004 PA 326 affords due process protection against unnecessary and uncontrolled discretionary power in conformance with Highway Comm’n v. Vanderkloot, 392 Mich 159, 169 (1974), an Westervelt v. Natural Resources Comm’n, 402 Mich 412 (1978). That is, the court shall consider whether, pursuant to 2004 PA 326, the “totality of protections against arbitrariness, including both safeguards and standards,” is adequate to protect against arbitrary administrative action, “irrespective of what [2004 PA 326] say[s] or fail[s] to say.”Westervelt, p. 443, n. 20 (quoting Davis, Administrative Law Treatise, 1970 Supplement, pp 40-41).

We do not retain jurisdiction.