Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  February 3, 2012                                                                   Robert P. Young, Jr.,
                                                                                               Chief Justice

  144535 & (22)(23)                                                                  Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  UNIVERSITY OF MICHIGAN,                                                                Brian K. Zahra,
           Respondent-Appellee,                                                                     Justices

  v                                                        SC: 144535
                                                           COA: 307959
                                                           MERC: R11 D-034
  GRADUATE EMPLOYEES ORGANIZATION/AFT,
          Petitioner-Appellee,
  and
  STUDENTS AGAINST GSRA
  UNIONIZATION and MELINDA DAY,
           Proposed Intervenors-Appellees,

  and

  MICHIGAN ATTORNEY GENERAL,
             Proposed Intervenor-Appellant.
  _________________________________________/


        On order of the Court, the motion for immediate consideration is GRANTED.
  The application for leave to appeal the January 25, 2012 order of the Court of Appeals is
  considered, and it is DENIED, because we are not persuaded that the questions presented
  should be reviewed by this Court. The motion for stay is DENIED.

         YOUNG, C.J. (concurring).

         I concur in this Court’s order denying leave to appeal in this matter. The Court of
  Appeals reached the correct result when it dismissed the proposed intervenors’
  application for lack of jurisdiction, although I believe a different rationale controls this
  matter.

         The Court of Appeals claimed that MCL 24.301 does not give it jurisdiction to
  hear this matter “because the current proceeding . . . is not a contested case.” Thus, the
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Court of Appeals interpreted MCL 24.301 as allowing interlocutory appeals only during
contested cases. While the proposed intervenors present nonfrivolous arguments
rejecting that claim, the Court of Appeals does not have jurisdiction in this particular
matter even if MCL 24.301 generally allows interlocutory appeals on matters that are not
contested cases.

       MCL 24.301 is part of the Administrative Procedures Act, MCL 24.201 et seq.,
and provides that “[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” (emphasis added). Another provision of the Administrative Procedures Act,
MCL 24.203(5), expressly defines “court” within the Act as “the circuit court.”
Accordingly, the interlocutory review provision of MCL 24.301 requires an appellant to
seek circuit court review of an agency’s action before proceeding to the Court of
Appeals. Because the proposed intervenors did not do so here, the Court of Appeals
reached the correct result in dismissing their application for lack of jurisdiction.

      MARKMAN, J. (concurring).

       I concur in this Court’s order denying leave to appeal because I am not convinced
that the Court of Appeals erred in holding that it lacked jurisdiction to entertain this
appeal from an interlocutory order of the Michigan Employment Relations Commission
(MERC). However, I share the unsuccessful intervenors’ concerns regarding the
manifest unfairness of the fact-finding hearing now underway before the administrative
law judge as a result of MERC’s denial of the two motions to intervene, one from the
Attorney General and the other from an organization called “students against GSRA
unionization,” which is composed of graduate student research assistants (GSRAs)
opposed to possible unionization.

        Given that both petitioner and respondent take the legal position that the GSRAs at
the University of Michigan constitute “public employees” under the public employment
relations act (PERA), MCL 423.201 et seq., there is no party to represent the alternative
legal position that the GSRAs do not constitute “public employees” under PERA. In
light of the Attorney General’s broad authority to intervene in cases “in which the people
of this state may be . . . interested,” MCL 14.28; see also MCL 14.101, and in light of the
potential impact of MERC’s determination on the university, university students and their
families, graduate students who do not wish to become members of a union, and state
taxpayers, this unfairness could easily have been dispelled by MERC granting the
Attorney General’s motion to intervene.

      In denying this motion, MERC stated, “We must carry out our statutory
responsibility [of determining whether the GSRAs are “employees”] without interference
from non-parties opposed to the very rights provided to public employees by PERA.”
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(Emphasis added.) It would seem that in carrying out its statutory responsibility, MERC
might have viewed it as helpful, rather than as a matter of “interference,” that it be
presented with arguments on both sides of an issue under consideration. Moreover, it is
utterly inapt to characterize an effort by the Attorney General to intervene in a case of
this significance—not only for the University of Michigan, but also for every other public
college and university in this state—as “interference,” in light of the straightforward
grant of legal authority to the Attorney General to do precisely what he did in this case in
an effort to intervene. Furthermore, MERC’s statement in justification of its decision to
deny the Attorney General’s motion—that he is “opposed to the very rights provided to
public employees by PERA”—even if accurate, should have been of no consequence to
MERC in rendering its decision. The Attorney General’s supposed motives, or policy
perspectives, concerning PERA have nothing to do with the propriety of his exercise of
statutory authority to intervene in cases before MERC.

       By denying the Attorney General’s motion, and thereby denying itself the benefit
of any argument that the GSRAs are not “employees,” MERC has only made its
obligation to faithfully carry out its statutory obligations more difficult, if not impossible.
MERC must now determine whether GSRAs are genuinely “employees” where the only
legal argument being presented throughout the hearing will be the affirmative argument.
And MERC placed itself in this situation in the face of the dissenting commissioner’s
objection that “a decision to refer this matter for hearing would appear . . . to be a sham if
we were to permit only one side of this crucial debate to be proffered at hearing.”

        Respondent argues that this result is tolerable because “[e]ven if the Attorney
General were correct . . . with respect to the hypothesized ‘one-sided’ presentation of
facts, the Court of Appeals would have the power to remand this matter to [MERC] for
further proceedings with the involvement of the Attorney General.” However, although it
may be true that after the “one-sided” fact-finding proceeding has been held, and after
MERC, relying on the findings yielded by this “one-sided” proceeding, has issued a final
decision, the Court of Appeals or this Court could conceivably remand for what
essentially would be a “do-over,” it is hard to understand the benefit of such a convoluted
procedure from the point of view of either efficient administration of the law or the
appearance of fair decision-making on the part of an administrative agency of this state.

       To her credit, the administrative law judge appears to recognize that it is “essential
that the record upon which [MERC] bases its decision be complete and accurate,” and
given that both the petitioner and the respondent are arguing the same position in the
hearings before her, she has a greater “responsibility . . . to develop the factual record
than is usual in a [MERC] proceeding.” Nonetheless, although she has agreed to “solicit
the Attorney General’s input after the parties have presented their evidence at the
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hearing,” this is clearly not sufficient to fully transform these hearings into a “two-sided”
proceeding. It is merely the best that she can do under the circumstances given MERC’s
decision.




                         I, Corbin R. Davis, 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.
                         February 3, 2012                    _________________________________________
       d0203                                                                 Clerk
