In this action challenging the standard for considering applications for state disability assistance program (SDA) benefits during fiscal years 1991-92 and 1992-93, defendants appeal by right the order granting plaintiffs supplemental relief. The trial court found defendants' policy regarding SDA eligibility invalid because it constituted a rule that should have been promulgated under the Administrative Procedures Act (APA), M.C.L. § 24.201 et seq.; MSA 3.560(101) et seq. It also determined that defendants' policy violated the plain meaning of the appropriations acts for fiscal years 1991-92 and 1992-93, 1991 PA 111 and 1992 PA 168. We hold that the policy regarding SDA eligibility was an interpretive statement that need not have been promulgated as a rule under the APA and that defendants correctly construed the language of the appropriations acts. We therefore reverse and remand for entry of judgment for defendants.
I. Underlying Facts and Procedural History
The state provided welfare benefits under a general assistance program (GA) administered by the Department of Social Services
1991 P.A. 111, § 805 provided in pertinent part as follows:
(h) A caretaker of a disabled person as defined in subsections (a), (b), (e), or (f) above.
Contemporaneous with the legislative action, defendants developed a policy for determining eligibility under subsection 805(1)(b). The policy provided as follows under the heading "Standard for Determining Disability":
The policy further defined the term "work" as "[a]ny work or work activity usually done for remuneration." Defendants continued the policy during fiscal year 1992-93 because the Legislature included identical language in subsection 805(1)(b) of that year's appropriations act. 1992 PA 168, subsection 805(1)(b). The Legislature, however, modified the language of subsection 805(1)(b) for fiscal year 1993-94 to provide benefits for "[a] person with a physical or mental impairment other than substance abuse which meets federal SSI disability standards, except that the minimum duration of the disability shall be 90 days." 1993 PA 186, subsection 805(1)(b). Accordingly, defendants discontinued the policy for determining disability under subsection 805(1)(b).
In February 1992, in response to defendants' implementation of the policy, plaintiffs, former recipients of assistance under the GA program, commenced this action seeking certification of a class action and declaratory and injunctive relief. Plaintiffs alleged that defendants' policy was invalid because the internal criteria for determining eligibility under subsection 805(1)(b) was not promulgated as a rule under the APA and the policy excluded applicants who fell within the scope of subsection 805(1)(b). The trial court subsequently denied, without prejudice, plaintiffs' motion to certify a class.
Defendants and plaintiffs filed cross-motions for summary disposition of plaintiffs' claims under MCR 2.116(C)(10) in March 1993. The trial court granted partial summary disposition for plaintiffs on June 8, 1994, declaring defendants' policy invalid and violative of the APA and the SDA appropriations acts. The court reasoned as follows:
The court took under advisement the issue whether to grant further relief, but certified its declaratory rulings as "final" for purposes of appeal.
In April 1995, plaintiffs moved for postjudgment supplemental relief under MCR 2.605(F), arguing that because defendants had improperly denied benefits to seventy-five percent of applicants, defendants must notify previously rejected applicants and determine their eligibility under an appropriate standard. Plaintiffs urged the court to use its general power to fashion relief to grant them the additional relief necessary to give effect to the declaratory judgment because defendants had not sought to implement the court's decision. Plaintiffs further argued that the court should direct that defendants determine eligibility by means of the disability standard used for purposes of the supplemental security income (SSI) provisions of the Social Security Act, 42 USC 1382 et seq.
The trial court took the motion under advisement after a hearing in July 1995. Nine months later, the court ruled that it would use its general power to fashion a specific remedy to enforce its declaratory judgment. Noting that defendants had not developed an alternate standard for determining disability, the court directed that they use the SSI standard because it was the only "coherent" standard, it reasonably effectuated the Legislature's intent, and defendants had expertise in using it. Next, the court recognized that personal notice to all rejected applicants was impractical, but concluded that defendants could provide reasonable notice through the mass media and the inclusion of written materials in food stamp mailings. Therefore, the court ordered that defendants (1) include written notices and application forms in food stamp mailings during August 1996, (2) air public service announcements in the top seven television markets not less than five times in prime time during the first two weeks of August 1996, (3) air the announcements in the top ten radio markets not less than five times during working hours in the first two weeks of August 1996, and (4) use the SSI standard to review applications. The court then dismissed plaintiffs' remaining claims as moot.
Defendants moved for reconsideration, requesting that the court amend its order to allow them to send a preapplication to all food stamp recipients in a separate mailing, which applicants could then present to the Family Independence Agency (FIA) for a full application. Defendants further requested that the court reconsider the method of providing notice because radio and television stations would not agree to air the public service announcements during the court-ordered period and some television stations would not sell air time for the announcements. The court denied defendants' motion for reconsideration, but extended the period
We reject plaintiffs' initial contention that this Court lacks jurisdiction over the trial court's June 8, 1994, order granting partial summary disposition because defendants did not timely claim an appeal from that order. The trial court certified its order granting partial summary disposition as a "final judgment" under the former version of MCR 2.604(A).
III. The APA
Defendants argue that the trial court erred in finding their policy invalid because it was not promulgated as a rule under the APA. We agree. We review this question of law de novo. Watson v. Bureau of State Lottery, 224 Mich.App. 639, 644, 569 N.W.2d 878 (1997).
The FIA is subject to the rule-promulgation requirements of the APA.
In AFSCME, supra at 8, 550 N.W.2d 190, our Supreme Court parsed the APA definition of a "rule," M.C.L. § 24.207; MSA 3.560(107):
The statute further provides, however, that a "rule" does not include, among other enumerated exceptions, "[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory." MCL 24.207(h); MSA 3.560(107)(h).
We conclude that defendants' policy was an interpretive statement, not a rule subject to the promulgation requirements of the APA, because it merely explained the language of the appropriations acts. We reject plaintiffs' argument that the policy constituted a rule because it altered the status quo and substantially affected the rights of the general public. Although our Supreme Court has suggested in dicta that the effect a policy has on the rights of the public may require its promulgation as a rule, see Michigan Farm Bureau v. Bureau of Workmen's Compensation, 408 Mich. 141, 150, n. 4, 289 N.W.2d 699 (1980); Detroit Base Coalition, supra at 184-185, 428 N.W.2d 335; Clonlara, supra at 247-248, 501 N.W.2d 88, Michigan courts have focused on the effect of an unpromulgated policy only where the agency establishes policies and procedures under a broad grant of authority to administer a program. See, e.g., AFSCME, supra, and Palozolo v. Dep't of Social Services, 189 Mich.App. 530, 473 N.W.2d 765 (1991). Under those circumstances, the agency policies may have the force and effect of law because the relevant statute does not provide specific standards for eligibility and administration of the program. The policies are not interpretive statements because they do not merely interpret or explain the statute or rules from which the agency derives its authority. Rather, they establish the substantive standards implementing the program. See Boyd v. Civil Service Comm., 220 Mich.App. 226, 236, 559 N.W.2d 342 (1996). By contrast, where an agency policy interprets or explains a statute or rule, the agency need not promulgate it as a rule even if it has a substantial effect on the rights of a class of people because an interpretive statement is not, by definition, a rule under the APA. Michigan Farm Bureau, supra at 148, 289 N.W.2d 699.
Before 1991, the Legislature appropriated monies to fund a GA program administered by the DSS in accordance with DSS rules and procedures. MCL 400.14; MSA 16.414, M.C.L. § 400.18; MSA 16.418. The Legislature did not dictate who was eligible for the program. See, e.g., 1990 PA 200. In funding the SDA program, however, the Legislature established who was eligible for benefits. 1991 PA 111, subsection 805(1)(b) and 1992 PA 168, subsection 805(1)(b) provided that a "person who [was] medically diagnosed as incapacitated and unavailable for work for at least 90 days" was eligible to receive benefits. Thus, unlike the policies at issue in AFSCME, supra, and Palozolo, supra, defendants' policy does not have the force of law because subsection 805(1)(b) governs eligibility and it remains the court's responsibility to determine the meaning of the language
Plaintiffs further mistakenly argue that defendants were required to promulgate their policy as a rule because it conflicted with the provision of the appropriations acts that it purportedly explained. Even assuming, arguendo, that the policy is more restrictive than the statutory provisions, this factor is of no consequence. Our Supreme Court rejected plaintiffs' argument in Clonlara, supra at 243, 501 N.W.2d 88, quoting Wayne Tp. Metropolitan School Dist. v. Davila, 969 F.2d 485, 494 (C.A.7, 1992):
Therefore, we conclude that that trial court erred in holding that defendants' policy was invalid because it was not promulgated as a rule under the APA.
IV. Subsection 805(1)(b) of the Appropriations Acts
Defendants next argue that the trial court erred in determining that their policy conflicted with the language of the appropriations acts. We agree. This Court reviews questions of law, including statutory interpretation, de novo. Watson, supra at 644, 569 N.W.2d 878. Although it remains our responsibility to determine the meaning of the statute, we give "appropriate deference" to the agency's interpretation. See General Motors Corp., supra, 93 Mich.App. at 373-374, 287 N.W.2d 240. This Court ordinarily defers to the construction of a statute by the agency charged with applying it unless the interpretation is "clearly wrong." Jones-Jennings v. Hutzel Hosp. (On Remand), 223 Mich.App. 94, 105, 565 N.W.2d 680 (1997).
A. Statutory Construction
In construing a statute, our purpose is to ascertain the reasonable meaning of the specific language of the statute. Cf. Gross v. General Motors Corp., 448 Mich. 147, 158-159, 528 N.W.2d 707 (1995); Mahrle v. Danke, 216 Mich.App. 343, 348, 549 N.W.2d 56 (1996); see, generally, Scalia, A Matter of Interpretation: Federal Courts & the Law (Princeton, NJ: Princeton University Press, 1997), pp. 23-25. Judicial construction is not permitted where the plain and ordinary meaning of the statutory language is clear. Ruff v. Isaac, 226 Mich.App. 1, 8, 573 N.W.2d 55 (1997); Watson, supra at 644, 569 N.W.2d 878.
In this case, the trial court erred in concluding that defendants' policy violated the plain meaning of the appropriations acts. Defendants' policy interpreted 1991 PA 111, subsection 805(1)(b) and 1992 PA 168, subsection 805(1)(b), which provided that a "person who [was] medically diagnosed as incapacitated and unavailable for work for at least 90 days" was eligible to receive SDA benefits. Defendants' policy explained this language under the heading "Standard for Determining Disability":
The policy further defined the term "work" as "[a]ny work or work activity usually done for remuneration."
We reject plaintiffs' argument that since a person who receives SSI, social security, or medical assistance because of a disability qualifies for SDA benefits under subsection 805(1)(a) of the appropriations acts, the Legislature must have intended a lesser standard to qualify under subsection 805(1)(b) than that used for purposes of determining SSI benefits. A person is disabled for SSI purposes if he is unable to engage in "substantial gainful activity" by reason of an impairment "which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 USC 1382c(a)(3)(A). The Legislature, however, could reasonably have decided to authorize benefits for someone who is unable to sustain gainful employment for twelve months because of a disability, subsection 805(1)(a), but require a higher threshold for those whose disability incapacitates them for less than a year, subsection 805(1)(b). For example, the Legislature could have reasoned that a person who is incapacitated for less than a year may be able to borrow funds to support himself and pay off the debt after resuming gainful employment. Further, the Legislature could have used the SSI standard in subsection 805(1)(b) if it intended to measure incapacity by a gainful-employment standard. We will not assume that the Legislature inadvertently omitted from subsection 805(1)(b) the requirements subsumed under subsection 805(1)(a), and then on the basis of that assumption, apply those requirements to subsection 805(1)(b). See Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993).
We likewise reject plaintiffs' contention that the remaining subsections of subsection 805(1) of the appropriations acts evince the Legislature's intent that subsection 805(1)(b) encompass applicants who are capable of performing some work, but cannot meet their basic needs because of their disability. The remaining subsections apply to specific categories of people (persons receiving residential care, persons receiving substance abuse treatment, AIDS victims, special education students, pregnant women, and persons caring for a disabled person). Persons in these categories qualify for benefits even if they do not satisfy the requirements of subsection 805(1)(b). We will not, under the guise of construing the statutory language, disrupt the legislative scheme by applying the disability standards applicable to persons falling within the other subsections to persons who can only qualify for benefits under subsection 805(1)(b).
We also decline to construe the instant statutory language as creating a "significantly" or "substantially" incapacitated standard where the Legislature did not employ that language. It is well established that "[w]e eschew the insertion of words in statutes unless necessary to give intelligible meaning or to prevent absurdity, without regard to our own estimate of the wisdom of the legislation." Great Lakes Steel Corp. v. Employment Security Comm., 6 Mich.App. 656, 661-662, 150 N.W.2d 547 (1967), aff'd. 381 Mich. 249, 161 N.W.2d 14 (1968). Here, the Legislature has used these very adverbs in other statutes to signify something less than a total- or complete-impairment standard. See, e.g., M.C.L. § 257.39a; MSA 9. 1839(1) (defining "permanent handicap" for purposes of the Michigan Vehicle Code), M.C.L. § 330.2001a(5); MSA 14.800(1001a)(5) (defining "mental illness" for purposes of chapter 10 of the Mental Health Code), M.C.L. § 440.2608(1); MSA 19.2608(1) (governing a buyer's right to revoke his acceptance of nonconforming goods under the Uniform Commercial Code), and M.C.L. § 257.1403(3)(a); MSA 9.2705(3)(3)(a) (creating a presumption that a reasonable number of attempts have been made to repair a defect in a new motor vehicle for purposes of the Michigan lemon law). We will not, under the guise of interpreting the appropriations acts, write into the acts a provision that the Legislature has declined to enact. See Autio v. Proksch Constr. Co., 377 Mich. 517, 524, 141 N.W.2d 81 (1966).
Thus, the trial court erred in holding that defendants' policy violated the plain meaning of the appropriations acts. Importantly, it is not for the courts to debate the wisdom or public policy of this legislation. Nummer v. Dep't of Treasury, 448 Mich. 534, 553, n. 22, 533 N.W.2d 250 (1995); see Ready-Power Co. v. Dearborn, 336 Mich. 519, 525, 58 N.W.2d 904 (1953). We do not do so here. Our function is to construe the language of the appropriations acts as it exists, not to legislate. Morgan v. Taylor, 434 Mich. 180, 192, 451 N.W.2d 852 (1990). Giving the terms "incapacitated," "unavailable," and "work" their common meanings, subsection 805(1)(b) does not take into account vocational factors such as age, education, and previous work experience. As such, an applicant's capacity to work for purposes of subsection 805(1)(b) is not measured by a minimum number of hours that he is able to sustain work activity or a minimum remunerative standard. Accordingly, defendants correctly interpreted subsection 805(1)(b) as requiring an inability to perform any work.
B. Legislative Approval of Defendants' Construction
Even if we concluded that the language of the appropriations acts was ambiguous, we would defer to the agency's interpretation because the Legislature approved defendants' policy for determining eligibility under 1991 PA 111, subsection 805(1)(b) when it enacted 1992 PA 168, subsection 805(1)(b), which contained the identical language contained in 1991 PA 111, subsection 805(1)(b). While plaintiffs correctly note that a failed attempt to amend a statute is ordinarily not evidence of legislative approval of an agency's construction, see Rogers v. Detroit, 457 Mich. 125, 162-164, 579 N.W.2d 840 (1998) (Taylor, J. dissenting), the Legislature is presumed to know of the agency's construction of a statute and adopts such a construction when it reenacts the language so construed. See Canterbury Health Care, Inc. v. Dep't of Treasury, 220 Mich.App. 23, 30, 558 N.W.2d 444 (1996). Welfare legislation presents an unusual application of these principles because the Legislature must reestablish the SDA program each year by appropriating funds for the program in a line item of the FIA budget. See Saxon v. Dep't of Social Services, 191 Mich.App. 689, 699-700, 479 N.W.2d 361 (1991). Thus, the Legislature's inclusion of the same language in subsection 805(1)(b) of 1992 PA 168 was not a failed attempt to amend an act, but, rather, constituted the reenactment of the language
Plaintiffs mistakenly argue that the Legislature's decision to modify subsection 805(1)(b) and mandate the use of the SSI standard during fiscal year 1993-94, 1993 PA 186, signaled the disapproval of defendants' policy for the prior two years. Although this Court can view an amendment enacted soon after a controversy regarding a statute has arisen as a legislative interpretation of the original act and, on that basis, give it retroactive effect, Harper v. Progressive Casualty Ins. Co., 79 Mich.App. 764, 768, 263 N.W.2d 1 (1977), we decline to do so here.
In light of our determination that the trial court erred in declaring defendants' policy invalid, we do not address defendants' remaining arguments.
Reversed and remanded. We do not retain jurisdiction.
BANDSTRA, J., concurs.
MARK J. CAVANAGH, J. (concurring in part and dissenting in part ).
I join in parts II and III of the majority opinion. I dissent from part IV, however, because I believe that defendants' interpretation of 1991 PA 111, subsection 805(1)(b) resulted in an unjustifiably restrictive standard of eligibility for disability benefits that was contrary to the intent of the Legislature.
Subsection 805(1)(b) provides that persons eligible for the state disability program include "[a] person who is medically diagnosed as incapacitated and unavailable for work for at least 90 days." To determine eligibility under this provision, the Department of Social Services (DSS) developed the following policy:
Defendants defined the term "work" as "[a]ny work or work activity usually done for remuneration."
General rules of statutory construction provide that if the plain and ordinary language of a statute is clear, judicial construction is neither necessary nor permitted. Meyer Jewelry Co. v. Johnson, 229 Mich.App. 177, 180, 581 N.W.2d 734 (1998). However, if a literal construction of a statute would produce unreasonable and unjust results inconsistent with the purpose of the statute, the court may depart from a literal construction. Rowell v. Security Steel Processing. Co., 445 Mich. 347, 354, 518 N.W.2d 409 (1994).
I believe that defendants' interpretation of subsection 805(1)(b) leads to unreasonable and unjust results. Defendants contend that the terms "work," "employment," and "job" are not limited by such factors as the number of days and hours worked, the amount of wages received, or an individual's education and training. Hence, a person who is available to work one hour at a job that pays one
Thus, according to defendants, the Legislature intended the following anomaly. Pursuant to 1991 PA 111, subsection 805(1)(a), a recipient of supplemental security income (SSI) is eligible for benefits. A person is disabled for SSI purposes if he is unable to engage in "substantial gainful activity" because of an impairment that lasts for one year or more. 42 USC 1382c(a)(3)(A). However, under 1991 PA 111, subsection 805(1)(b), a person who is disabled for more than ninety days but less than one year can receive benefits only if he is completely unable to perform any amount of work for any amount of compensation.
Furthermore, statutory provisions should be construed in light of other related provisions to carry out the purpose of the Legislature. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 209, 501 N.W.2d 76 (1993). The remaining subsections of subsection 805(1) support a broader reading of the disability standard contained in subsection 805(1)(b). 1991 PA 111 authorized benefits for people receiving thirty-day substance-abuse treatment, AIDS sufferers, recipients of special education services, pregnant women, and caretakers of disabled persons. See subsections 805(1)(d)-(h). Undoubtedly some people in each of these categories can engage in some remunerative work, but may not be able to maintain sufficient employment to support themselves. Only those who are disabled for more than ninety days but less than one year are subject to the Draconian standard adopted by defendants.
In approving defendants' interpretation of the statute, the majority relies on the fact that the Legislature reenacted § 805 for the 1992-93 fiscal year, 1992 P.A. 168, despite the fact that the Legislature adopted the SSI standard for the 1993-94 fiscal year, 1993 P.A. 186. The rules of statutory construction provide that a longstanding, consistent administrative interpretation of a statute by those charged with its execution is entitled to considerable weight, and ought not be overruled without cogent reasons. Ludington Service Corp. v. Acting Comm'r of Ins., 444 Mich. 481, 490, 511 N.W.2d 661 (1994). However, defendants' interpretation of the legislative provision at issue is not longstanding, and is therefore entitled to less weight. Given the realties of the legislative process, I do not find the single reenactment of subsection 805(1)(b) to be a dispositive indicator of the Legislature's intent.
I would affirm the trial court's grant of plaintiffs' motion for summary disposition.