*1 442 Mich CLONLARA, v STATE BOARDOF EDUCATION INC 3). (Calendar 10, Argued No. Docket No. 91372. November May Decided Clonlara, Inc., nonreligious private, offering curriculum school through home educa- and administrative assistance its based home, program parents at who educate their children tion McConnell, parent not have a teach- and Deborah who does ing who educates her children at home with the certificate and Clonlara, brought Ingham an action in the Circuit Court aid others, seeking against Board of the State Education and declaratory injunctive and relief from enforcement of De- partment Nonpublic and Home of Education’s School School plaintiffs proce- compliance procedures. alleged that The they dures are invalid because were accor- Act, 24.201 et dance with Administrative Procedures MCL 3.560(101) seq., they subject seq.; et home school parents compulsory prosecution under attendance law hearing required by providing without an administrative act, vagueness. nonpublic they and are void court, Brown, J., preliminary injunction Thomas L. issued a information-gathering requiring department modify its form, enjoin compliance membership but did not use of the procedures. hearing, After a the court found that instruction teachers, provided by pupils for home school must be certified days pupils receive 180 of instruc- that home school need not tion, taught, not be that social studies and science need and department interpret that the could not the term "instruction” Legislature act did used Cavanagh, P.J., Appeals, it. not define The Court and Lesinski, JJ., affirmed, holding compli- T. Jansen J. ance that had not void because were rules been promulgated in with the Administrative Procedures accordance 116372). (Docket appeal. Act No. The defendants opinion joined Levin,
In an Justice Chief Justice References 2d, 95, 201-208, Am Jur Administrative Law 233-255. § See ALR under Administrative Law. Index Bd v State of Ed Cavanagh, Beickley, Boyle, Mallett, and Justices Supreme Court held: Department Nonpublic of Education’s School and Home rules, compliance procedures School are not and therefore are *2 they promulgated pursuant not invalid because were not to the rule-making requirements. Administrative Procedures Act Rather, they interpretive are statements that do not have the force of law. agency’s authority adopt provided 1. An to rules is in the creating agency vesting powers statute the it with certain may statutory authority. and also be inferred from other Rules apa adopted by agency an in accordance with the have the law; however, agency force and effect of where the has not been empowered promulgate rules, policy it, by to statements issued rules, interpretive promulgated so-called need not be in accor- dance with the and do not have the force of law. Agencies may interpret they 2. the statutes that are bound Legislative to administer and enforce. rules have the force of Interpretive law and are in enforceable and of themselves. agency’s statute, interpretation rules state an of a but an rely underlying support must on the statute to its interpretation. case, compliance procedures In this the state in Department what circumstances the of Education will consider nonpublic a home school to inbe violation of the school act. process deciding when a violation has occurred necessar- ily interpretation nonpublic Thus, involves school act. setting guidelines concerning department when the will seek to promulgating legislative enforce the act is not the same as rules. interpretive goes beyond scope 3. An statement the may challenged judicial the law be when it is in issue in a proceeding. interpretation supported by enabling An interpretation, act is an invalid not a rule: Communication to public interpretive does not convert an statement into an independently rule; rather,'informing public enforceable is purposes interpretive case, one of the rules. In this compliance procedures destroy rights. do not create or A home may ignore compliance procedures school student at the having department hearing risk of seek a at which the underlying department’s interpretation statute and not department would control. The then must show violation of the statute, interpretive not violation of the rule. interpretation 4. An invalid cannot become an invalid rule empowered promulgate
unless the is to rules. Because Department authorized, explicitly of Education is not 442 Mich [Máy nonpublic relating promulgate school implicitly, rules act, year requiring 180-day cannot have in its action the effect an invalid rule. nonpublic by the school act are covered Home schools such, public As they than school. are schools other provide required who instruction a teacher schools, public qualified in and because be to teach would teaching requires in that all schools the School Code teachers, nonpublic act man- certified and the done standards, meet the same all schools dates in must be conducted of instruction home schools hours statutory requiring no teachers. There is basis certified however, days; term schools have a minimum home requiring to teach social studies and science are home schools provisions. statutory interpretations relevant valid part. part Affirmed in and reversed part joined by concurring in Riley, Griffin, Justice Justice 180-day requirement dissenting part, is stated that apa. rule in violation of An admin- an invalid granted only power if it within the istrative rule is valid pursuant proper procedure, agency, is and is reason- issued comply procedural require- able. If a rule does not with the *3 apa invalid; adopted agency policy of it is an without ments the apa complying that effect of a rule and has the promulgated invalidly rule. is an case, 180-day procedure In this meets the basic definition binding agency a The of rule under the and has effect: procedure binding, if it to acted as were was mailed all recipients to known home schools and directed the return an adherence, required agency information form that enforced procedure and directed intermediate school districts to law, recipients undoubtedly it and the understood it enforce as binding it was authorized and be declared by requirement not fall defined the law. does within the apa’s exceptions act, nonpublic because it contradicts the days Although which does not mandate instruction. recognized binding, procedure legally board was not its apa. practically actions bound home schools in violation of the Regardless placed procedure, labels on the the board possessed 180-day requirement. power no to dictate (1991) App part NW2d 66 affirmed in part. reversed Department — — — 1. Schools Home Com- Schools of Education pliance Procedures. Department Nonpublic of Education’s School and Home Bd v State Opinion op the Court rules, compliance procedures are and therefore are School they promulgated pursuant not invalid because were not rule-making requirements; Administrative Procedures Act rather, interpretive statements that do not have the force of law. — —
2. Administrative Law Administrative Procedures Act Interpretive Rules. adopt provided agency’s authority An rules is in the statute creating agency vesting powers it with certain and also may statutory authority; adopted be inferred from other rules agency in Proce- an accordance with the Administrative law; however, dures Act have the force and effect of where the rules, empowered promulgate policy has not been it, rules, interpretive statements issued which amount to need not be in accordance with the act and do not (MCL seq.; seq.). have the force of law 24.201 et MSA 15.1921 et Agency Interpretive — — — 3. Administrative Law Statements Enabling Act. interpretive goes beyond An statement scope enabling may challenged of an act when it is in issue judicial proceeding; supported by in a if not the act it is an interpretation; public invalid communication to the does not interpretive independently convert an statement into an en- rather, rule; informing pur- forceable one poses interpretive rules. Berggren plaintiffs. Kurt for the Kelley, Attorney General, Frank J. Thomas L. Casey, General, Solicitor and Paul J. Zimmer and Attorneys Woodñn, General, D. Jane Assistant the defendants. question presented J. The is whether
Levin, compliance pro school and home school *4 published Depart cedures, October, 1986, in pursuant nonpublic ment of Education compulsory act,1 act,2 school attendance 302, seq.; seq. 1 1921PA MCL 388.551 et MSA 15.1921 et 2 Code; seq.; seq. School MCL 380.1561 et MSA 15.41561 et 230 442 Opinion of the Court 3act, are in school districts the intermediate and promulgated they in accor not because were valid requisite to rule mak with dance ing Administrative Procedures forth in the set compliance procedures are hold Act.4 We rules, are not invalid because and therefore not they pursuant promulgated not
were interpretive rule-making requirements. They are law.5 not have force of statements do i Clonlara, Inc., Deborah McConnell com seeking declaratory action, and in this menced barring junctive of Educa relief the State Board Department of from en and the Education6 tion compliance procedures. forcing the claimed that com Clonlara and McConnell pliance procedures rules and are invalid constitute accordance were compliance procedures sub apa, ject prosecution parents under the home school providing compulsory law7 without attendance hearing required by administrative compliance procedures act,8 and that vagueness. for are void nonreligious private, a is school that philosophy
applies in the education of an alternate Code; 380.653; MCL MSA 15.4653. School 3.560(101). 306, seq. seq.; et 4 1969 PA MCL 24.201 et MSA See Rules, Publishing Processing chapter MCL Procedures 3.560(131) seq. seq.; MSA et 24.231 et provides "interpretive Act that an The Administrative Procedures not have the and eifect of law statement” that itself does "force but 3.560(107)(h). 24.207(h); merely explanatory,” rule. MCL MSA is not a is Runkel, Instruction, Phillip Superintendent of E. Public also defendant. seq. seq.; 380.1561 et 15.41561 et MCL MSA seq. seq.; et 15.1924 et MCL 388.554 *5 Bd v State Opinion of the Court campus program based children. In addition to its Arbor, in Ann curriculum and Clonlara offers through assistance its home based administrative education program parents who have chosen to their at educate children home.
Approximately including families, five hundred family, for Clonlara’s McConnell’s have contracted September, 1984, home school services. Since school-age has educated her McConnell three at home with the aid of Clonlara.9 The children substantially children receive all their McConnell home, instruction from educational occasionally their mother at attending classes at the Clonlara campus. high education, McConnell has a but teaching permit does not have a certificate elementary secondary in teach either school. During period preceding the six-month the Feb hearing ruary, 1989, court, in the circuit approximately McConnell children attended twelve during hours of with classes certified teachers eight visits to Clonlara. McConnell estimated that her children were in communication with certified average per day. 1.5 teachers an hours This telephone included conversations with certified telephone personal teachers at Clonlara and communication with three certified teachers who taught their children at home.10 compliance procedures promul- were not gated requirements. rule-making in accordance with the compliance procedures concern processing the collection and specting sory authority of information re- department’s supervi- the exercise of the nonpublic under school act. The department may circumstances which the insti- fifteen, began February When the trial Daniel was thirteen, Tamara was and Gene David was twelve. 10It is unclear whether McConnell included use of educational videotapes computer audio- and and a in her estimate. op the Court noncompliance proceedings
tute enforcement act are provisions also state The compliance stated.11 provide instruction: a home school shall teacher; —by a certified *6 classes; —in studies and science social year lasting at least 180 —during a school days. injunc- a preliminary issued judge
The circuit modify the to its required department that tion form, membership report information-gathering proce- the enjoin compliance use of but did not dures. compli- ruled that the hearing, judge
After a vague and and "so procedures arbitrary ance were impossi- it through problems” was shot procedures legal those that met separate ble to law, set and standards forth and requirements He instruction did not. said that those that provided be certified pupils home school must (1) teachers, pupils home school but concluded of instruction each days need not receive (2) taught in study the course be year, school not include social studies and home schools need (3) science, department interpret and could not in the term "instruction” as used act, Legislature did not define it. Appeals affirmed on different
The Court
compliance
grounds.12 The Court held that
15.1924,
4,
388.554;
superin
provides
MCL
Section
act,
instruction, upon
public
discovering
a violation
tendent
complaint upon
parents
serve notice with a
and hold
shall
parents
remedy
hearing.
If
found and the
a violation is
do
time,
compelled
may
appropriate
amount
children
within
to attend
compulsory
See
under the
attendance law.
n 7.
(1991).
App
ii agency’s authority It "[a]n has been said that adopt provided typically rules is for in the statute creating vesting it with certain "[r]ulemaking powers,” authority may and that statutory authority also be inferred from other granted Michigan agency.”14Bienenfeld, to an Ad (2d ed), pp 4, 18, ministrative Law ch 19. This Court has said that "what is essential to a valid Michigan . . . ’rule’ is: a reasonable exercise of delegated legislatively power, pursuant proper procedure.”15 February, attorney general
In an assistant Superintendent wrote the of Public Instruction *7 response Department inquiry to his whether the of authority promulgate Education the has rules regulating pursuant nonpublic home schools express school act. He observed that there is no grant rule-making authority of in act. the He said sixty-five years enactment, that in the since its the department promulgated any pursu- had not rules nonpublic ant to the school act. He concluded that department authority the promulgate does not have the regulating pursu-
rules home schools nonpublic ant to the school act._ 13 Id., p 337. 14 rule-making Neither Clonlara nor McConnell claim that author-
ity nonpublic can be inferred from either the school act or another statute. 15Michigan Bureau, Compensation Farm Bureau v Workmen’s 408 (1980). 141, 150; Mich NW2d [May- Opinion of the Court act, school
In contrast of State Board Educa authorizes School Code rules in a number of areas.16 tion promulgate authorizing following provisions the School Code promulgate rules: of Education to State Board 15.41172(1). 380.1172(1); promul- shall "The state board MSA MCL tests, projective nonprojec- concerning personality and gate both rules pupils as types, in school districts state tive administered to programs.” projects parts or as school school 15.41251(1). 380.1251(1); psychological is "School service MSA MCL operated rules shall be under function and a related nonclassroom board, promulgated by the educational which shall establish state for, requirements certify qualified and issue experience and as and certificates to, personnel for the services.” 380.1252; Nursing operated services "shall MCL MSA 15.41252. promulgated which shall establish the state board under rules certification registered requirements nurses in the services.” for 380.1296; provided Auxiliary shall be 15.41296. services MCL MSA "include health and under board. These rules services; examinations; crossing guard . . nursing . street services and language speech services.” teacher of and 15.41301(2). 380.1301(2); pregnant person "A who MCL MSA regular age may compulsory withdraw from a under school school promulgated by program in rules the state accordance with board.” 15.41301(4). 380.1301(4); promulgate "The shall MCL MSA board section,” pregnant person implement providing that a rules to this expelled pregnancy and the school boards cannot be school-age, provide programs alternative education districts can expectant mothers and their children. 15.41531(12). pro- 380.1531(12); "The state board shall MCL MSA mulgate qualifications. implementation of” teacher certification and rules for the 15.41703(1). 380.1703(1); "Special personnel MCL MSA education requirements promul- qualifications rules shall meet the and gated by the state board.” 15.41703(2). curriculum, 380.1703(2); Special education MCL MSA procedures regarding placement, program eligibility, size, and class review housing, quality, supplies adequacy equipment quantity and day length and content of of instructional methods promulgated by the in with rules state board "shall be relative to accordance programs special and services.” education oper- 380.1741; 15.41741. "An intermediate school board MCL special ating operation programs contracting for the education membership may pupils carry as a or local state school aid available calculated on the same manner proportionate services to its district and shall be entitled share *8 Membership programs. shall be these by provided promulgated in rules the state basis board.” Bd State v op the Court agency adopted by with an accordance Rules They apa of law. have the force and effect pro with' the in accordance must be cedures set if are not valid forth in the apa, Where, how not followed.17 those are pro empowered agency ever, mulgate has not been policy rules, issued need statements apa proce promulgated in accordance the force of law. Such and do not have dures statements are so-called
"interpretive As rules.” interpretive expressed by Davis, "An Professor any agency exercis issues without rule is ing rule delegated legislative power to make law through rules.”18
m apa provides: The statement, regulation, "Rule” means an standard, general ruling, or instruction of policy, applies law en applicability implements agency, or that
forced or administered procedure, practice prescribes organization, amendment, including suspen agency, .[19] sion, . . or recision thereof. Specifically from the definition of excluded "rule” are: intergovernmental, interagency, or intra-
(g) An apa Legisla- provides a means which the hearings making through public participate in rule ture can approval by joint on administrative rules with and intervals between each committee process. to assure that seeks law-making legislative process when are not lost essentials functions, delegated performed by Legislature, formerly to an Rights Handicapped agency. Base Coalition for Human See Detroit (1988). Services, Dep’t Social NW2d (2d ed), 7:8, Davis, p 36 and also 1989 Law § Administrative Supp, p 243. 3.560(107). 24.207;
19 MCL *9 442 Opinion of the Court directive, memorandum, or communication agency of, rights does not affect to, public. practices available instructions, interpretive (h) an A form with pamphlet, statement, informational guideline, an not have that in itself does material or other explanatory. merely but is effect of law force and not to to exercise or agency an (j) A decision although power, statutory permissive exercise a affected.[20] rights or interests private A interpret authority Agencies have and enf to administer they are bound statutes orce.21 Interpre- the force of law. rules have
Legislative aof agency’s interpretation an tive "rules” state in and of rules are enforceable Legislative statute. on the under- rely But must themselves. set reading of a statute support its statute lying "rule.” interpretive forth in an rules that have Legislative rules are substantive fill in the of law. These rules the force and effect interstices its intent tute its carry out presumably of the statute and may A not substi- greater detail. court legislative content of a judgment agency agency rule, rule if the may only strike the but it, adopt authority to statutory lacked the rule is proper procedure, or failed to follow 4, p [Bienenfeld, supra, ch unreasonable. 18.] are, [IJnterpretive basically, those rules 20 id. Davila, Twp Metropolitan Wayne Dist v School 969 F2d 1992).
(CA 7, Bd of Ed v State Opinion op the Court statute interpret apply provisions agency operates. No sanction under which the interpretive rule as to the violation of an attaches such; statute, attaches to the violation of the sanction . . . merely interprets. rule which the ambiguous or interpretation They state language which will be followed statutory doubtful until the statute is unless and interpreted by the authoritatively otherwise courts. *10 represents something more than the If the rule requires— opinion to what the statute agency’s if the lative as legis- legislature delegated has a measure of provided power agency, and has a for violation of such rules as statutory sanction adopt may prop- the rule agency may —then legislative. Cooper, State erly be described as [1 Law, pp Administrative 174-175.]
B in cir compliance state what will con Department cumstances Education non sider a home school to be violative of the department obliged school act. The is a it contends that a home hearing hold when in the act’s provisions.22 school is violation of has occurred deciding when a violation process non interpretation involves necessarily Thus, setting guidelines concern public school act. ing department will seek to enforce the when promulgating legislative the same as act is rules. (After 388.554; People MSA 15.1924. In v Bennett Section MCL (1993),
Remand), majority a of the Court 501 NW2d persons conducting today are entitled to home schools decides compul- hearing found to have violated the such a before can be sory school act. 442 Opinion op the Court
C Appeals agree the Court of with We construing act board erred although 180-day year, requiring as reasons other the Court of opinion of in the than those stated disagree Appeals. the Court We concerning Appeals, however, studies the "social requirements. Those course science”23 course and requirements DeJonge,24 In this Court valid. are requirement is certification holds that the teacher when inter Amendment of the First violative rights. parent’s In Free Exercise a majority feres with that the Bennett,25 of the Court decides requirement not violative of certification teacher guaranteed by process the Four due substantive teenth Amendment.
iv a number of ar- McConnell make Clonlara and compliance procedures guments despite legislative rules, the absence of statu- fact promulgate delegated power torily rules.
A
that
the com-
McConnell observe
Clonlara and
parents
pliance
required
that
include a form
to their local school
to fill out and return
appeal. It
in this
is not in issue
The form
districts.
is
nonpublic
act,
§ 5 of the
authorized
approved by
in
Rd
this Court
Sheridan
and was
23
p
supra,
12
339.
Note
24
(After Remand),
People DeJonge
B proce that the Clonlara and McConnell contend scope go beyond and therefore dures law interpretive excep not statements under an are tion set forth apa. 7(g) interpretive
§in An goes beyond scope of the law statement may challenged judicial in when issue proceeding. interpretation supported by An enabling interpretation, not a act is an invalid "wrong” interpretive Otherwise, rule. might statements rules with the force of law on the become premise they false were accor apa procedures. "[B]ecause re dance with the viewing disagrees interpreta court with an legislative.”26 tion does not render it
c Clonlara and McConnell contend that the com- pliance procedures intergovernmental, are not an intra-agency interagency, under memorandum 7(g) exception they § were distributed to public public. Communication to the does not interpretive indepen- statement into an convert an informing dently Rather, rule. enforceable interpretive purposes is one of "Interpretive rules are statements as to "rules.” regulation agency thinks a statute or what they means; issued to advise the are statements Dist, Metropolitan supra, p Interpre- Wayne Twp School n 21 they specify application of "rules” are invalid if do more than tive a legislature, implicit general language statute, legislative purpose in the used governing they they if extend if conflict with the statute, relationship modify to a or if have no reasonable or statutory purpose. Cooper, supra, pp 252-259. See *12 Opinion of the Court agency’s of the law of the construction
administers.”27 persons may conform
Further, fact interpretations does not their behavior legislative interpretations are rules. that the mean The interpretive "pragmatic consequences” of published they "declara as "rules” is that proper interpretation law, tion^] of the normally conform, the the since those affected will regulation guide provides practical as to how enforcing representing public interest office apply it.”28 the law will
D arguments Underlying many that these McConnell is the sense and must be interpretive legislative rules rather than they effect. have substantial statements because adopts argument, on that this The dissent year 180-day would hold basis argument requirement that sub is invalid. enforceable rules when stantive statements are legislative authority granted agency has not been promulgate in Mich rules has not been followed igan, rejected by the federal courts.29 and has been (2d ed), 4.6, 27 Schwartz, p (emphasis Administrative Law § added). 28Id., pp 159-160. interpret underlying statute must be All rules which binding they believes is set forth what agency’s congressional interpretation, intent. . . . Courts are not bound parties regulated by are. . . . but the statute 'binding’ regulated parties in on the . . . rules are "[A]U set, time, legal minima of beha- for the sense Dist, Twp Metropolitan [Wayne n 21 School vioral standards.” supra, p 493.] Dist, supra, p Wayne Twp Metropolitan n 21 School See delegated power impact but is exercise test is substantial "[T]he 7:8, Davis, p supra, through . ...” n 18 § to make law rules *13 State Bd of v Opinion of the Court compliance procedures create or do not The ignore parent may rights. destroy A home school having compliance procedures at the risk the hearing department § 4 of the under seek hearing, it is the the act. At such a underlying whether that would control statute parent law, not the de- violated home school partment’s proceeding, interpretation. At such a department a court seek to convince would interpretation of the statute is correct that its parents the statute. had violated in fact department of the stat- must show violation The interpretive rule. ute, of an not violation 180-day would hold that because The dissent requirement year rule, it effect of a has the school is an invalid rule interpre
rather than an invalid interpretation however, cannot, An invalid tation. agency em unless the is an invalid rule become powered promulgate to rules.30 dissent, by Anthony, on ac- Professor in an article relied knowledges point wrote: this at outset. He readily Legislative from those that rules can be differentiated "legislative nonlegislative. is that a
are
rule is the
to make law
as
The
with
of the rule must be an intentional
The fundamental
idea
delegated legislative power
product
of an exercise
qualifies
through
particularly, a rule
rules.” More
1)
requirements
legislative
following
are met:
if all of the
possess delegated statutory authority
agency
act
to
must
2) Promulgation
subject
respect
matter of the rule.
to
delegated
exercise of that
3)
delegated statutory
authority.
agency
possess
The
must also
4) Promulgation
authority make rules
the force of law.
authority to
intentional exercise of
of the rule must be an
make rules with
must be
gation
5) Promulgation of the rule
the force of law.
6)
authority.
promul-
an effective exercise of that
agency’s
observe
mandated
must
apa
agency’s
is a
organic
.... An
issuance
statute and
legislative
only if it meets all six of these
rule if and
valid
template
requirements.
ñt this
All
rules that do not
substantive
(if they
interpretive
nonlegislative. They
rules
are either
an to follow apa to make empower agency, the rules. agency it fails to so When rule-making proced not follow the need ures.31 Michigan in the dissent on and federal
Reliance Michigan precedent misplaced. In all the cases *14 dissent, an relied on the the issue was whether granted rule-making agency that had been author- required procedures. ity comply was to with apa agency at the or effect of Courts look substance empowered agency an has been to action when make rules because of the need to agency
prevent the goals seeking accomplish the of from to making observing procedural rule requirements without the apa making. the
for rule
None of
cases
agency,
that an
relied on
empowered
the dissent holds
promulgated
rules,
to make
had
it had failed to follow the
invalid rule because
procedures.
apa
Rights In Detroit Base Coalition for Human
Handicapped Dep’t
Services, 431 Mich
v
of Social
(1988)
required32
172; 428
355
the dss was
to
NW2d
providing procedures
promulgate rules
for hear
person
ings
contests the denial or reduc-
where
regulatory language)
policy
policy
interpret
specific statutory
not).
(if
rules,
Interpretive
[Anthony,
statements
do
statements, guidances,
federal
manuals and the like —Should
agencies
public? 41
L J
1321-
use them to bind the
Duke
omitted,
original,
emphasis
emphasis
except
1323. Citations
preceding
added
6.]
31
given
examples
Legislature
See n 16 for
of where the
has
rule-making authority.
Department of Education
32
16.409(1).
400.9(1);
See MCL
MSA
Bd 247
v State
Opinion of the Court
whether
At issue was
assistance.
tion of
through
hearing procedures
such
change
dss could
bulletin
policy
of what
labeled
the issuance
requirements
rule-making
avoid
thereby
apa.
Court,
holding
that
This
apa, wrote that
required
was
to observe
"[t]he
mandates
that
provision
statutory
relevant
only
pro
hearings pursuant
conduct
department
added.)
mulgated
(Emphasis
rules.”33
Bureau,
in Farm
chal
petitioners
Similarly,
Bureau of
Director of the
letters of the
lenged
establishing
new rate
Compensation,
Workmen’s
changes
on the
as rules
basis
schedules
apa.
under
should have been
provided
Act
Compensation
Disability
Workers’
apa,
director,
in accordance with
"
with this act
rules not
inconsistent
make
'may
. . .’"34
of the act.
provisions
out the
carrying
indeed,
and a sound
policy
It
be sound
may,
supra,
Rights,
n 17
431 Mich
for Human
Coalition
Bureau,
supra,
of the other cases
n 15
construction of the to hold apa, agency must and that an effect are determinative through rule-making procedures it when act has been authorized promul- Legislature
by the to gate But, in a Davis stated rules. as Professor entitled "Can Substantial section of his treatise Impact if Force of Law Con- of Rules Give Them Delegated Agency gress No Power Has Having Rules Force of Law?”: Make impact may of rules The idea that substantial totally give of law seems on its face them force of the idea con- merit. Full examination without firms that Administrative Law totally merit. Davis is without [2 (2d ed), 7:16, p § 76.] Department authorized, is not of Education promulgate explicitly implicitly, rules relat- Consequently, ing act. department be an cannot action taken negative implication of Davis’ rule. The invalid give if effect cannot statement substantial them of law—and thus constitute rules force legislative effect sim- rules —then substantial valid ilarly cannot make them invalid rules.
vi
proce-
compliance
whether the
We now consider
interpretations
the law. This
dures are valid
7(h) exception
the subsection
Court has said
narrowly
interpretive
must
con-
statements
requires
interpretative state-
"and
that the
strued
States,
407;
1194;
System,
A
compliance procedures
an instruc
state
teaching
recorded
certificate
a valid
tor must have
office.36
district
intermediate school
nonpublic
act37defines
schools
2
Section
of
parochial
as
private,
school
or
denominational
giving
public
"any
school
other
than
school
age
16 . . . .”
to children below
instruction
Home schools
are
they
because
the act
are covered
"any
than a
other
school.”_
35
procedures
compliance
any
the other
We do not address
Appeals.
the Court
not been addressed
have
Appeals said:
The Court of
procedures
specific regulations
in the
on
set forth
nonpublic
general
school statute
intent of
basis of the broad
require-
explanation of the statute’s
do not constitute mere
Code,
requirement
MCL 380.1
in the School
There is no
ments.
seq.
act
seq.;
in the
teacher-student contact.
15.4001 et
et
mandating
MSA
Fur-
face-to-face
interactive
ther,
statutory requirement
that certain sub-
while there is a
subjects
taught,
not include social
jects
do
are to be
these
science,
require.
procedures
Further-
which
studies
more,
instruction
requirement
under the
days
encompass
180
900 hours or
by a certified teacher
explanation
year
is not a mere
each school
instruction
nonpublic
legal duty for a school
There is no clear
school act.
days
the School
the State School
provide
under
of instruction
district
Code,
15.41284(1),
380.1284(1);
MSA
MCL
15.1919(1001X2).
388.1701(2);
Act,
Bd of Ed
State
MSA
Aid
MCL
Schools,
Community
Houghton
Lake
(1988).
App
338-339.]
NW2d
[188
acceptable to the
permit
Testimony
would be
indicates that a
department.
388.552;
15.1922.
MCL
Section 138states that is the intent of this "[i]t *17 schools, act that conditions of such sanitary therein, qualiñcations study the courses of of the teachers thereof shall of the same stan provided general dard as school laws of the by added.) section, then, (Emphasis state.” This re quires nonpublic provide comparable schools education, including qualifications, pub teacher as lic schools. 339provides:
Section person give any in No shall teach or instruction regular grade of the private, in elementary any studies parochial
denominational or school within this state who does not hold a such certiñcate as grades him in qualify would the or her to teach like public [Emphasis schools of the state .... added.]
School 123340provides, excep Code with a few § tions, that "the board of a school district or inter permit mediate school district shall not a teacher does not hold teaching who a valid certificate in grade department teach a of the school . . . .” in provision, Under this all instruction schools is public by conducted certified teachers. Reading provisions these four in conjunction 1) leads to the conclusions home schools are by nonpublic school act because they covered 2) school”;41 public are schools "other than a aas school, public "other than a school” home schools required provide by instruction a teacher qualified who would otherwise be to teach in the 3) schools; public all hours of instruction in home 38 388.551; MCL MSA 15.1921. 39 388.553; MCL MSA 15.1923. 40 15.41233(1). 380.1233(1); MCL 388.552; accepted by MCL MSA 15.1922. This view was both sides Appeals. at trial and the circuit court and the Court of Bd of State v Opinion of the Court teachers, certified must be conducted schools requires that all § 123342 School Code teaching certified be done in schools nonpublic act43mandates teachers that as the same standards meet schools public schools. (After Remand), DeJonge People
Today, v (1993), holds this Court 266; 501 Mich that NW2d requirement un certification the teacher parent’s infringes First on a constitutional when Amendment free People rights. And, exercise (After Remand), NW2d Bennett (1993), majority Court sustains constitutionality quirement requirement re teacher certification challenge claiming
against proc due of substantive is violative *18 ess.44
B department statutory basis for There is no years require that schools have school that home require- 180-day days. of 180 The last a minimum enabling scope goes beyond stat- ment utes interpretation. and is therefore an invalid Houghton Lake Court, of Ed v in State Bd This Community 80 Schools, 658; 425 NW2d (1988), Board of Edu the State considered whether compel of education a local board cation could provide year. days It in a school 180 of instruction 1284(1)45 and State of the School Code § construed provide that Act, § 101,46 both Aid which School days for instruc student the minimum number days. that these The Court held be 180 shall tion 42 380.1233; MSA 15.41233. MCL 43 388.551; MSA 15.1921. MCL 44 accompanying text. See n 25 and 45 15.41284(1). 380.1284(1); MSA MCL 46 15.1919(1001). 388.1701; MSA MCL 230 442 252 op the Court mandate an absolute do not contain provisions does Rather, if a district state that days. will the district days, for hold school aid. of its state forfeit some public that schools requirement There is thus no result, the board As a days. session requirement year school 180-day base the cannot comparabil- to or analogy on an for home schools requirements. public school ity indicates school act nonpublic in the Nothing must be session schools nonpublic in the state average year That days. support does not days is and the nation interpretation. 180-day
c teach social home schools requirement The statu several supported by studies and science act attendance compulsory provisions. tory attend a school child nonpublic that a requires compara subjects "which teaches chil schools to taught public in the to those ble . . .”47 . age grade corresponding dren teach public schools that all testimony There was has Legislature and science. social studies among as courses history science and identified must schools those provide.48 15.41561(3)(a). 380.1561(3)(a); MSA MCL *19 public 380.1171; provides that schools should 15.41171 MCL MSA protection and of provide "humane treatment instruction on the nature; economy of MCL role in the birds” and their animals and 380.1171a; 15.41171(1) provide education that schools mandates MSA land; relationship MCL to nature and in their for students 380.1166; provide that education for mandates schools MSA 15.41166 15.41173(1) 380.1173(1); history; MSA MCL in civics and students mandates special ing give appropriate of a authorities that materials, degree includ- instruction to the to which attention multiracial, textbooks, pluralistic, and reflect the studies social 712A.2(a)(4), (b)(1)(A); society. See also MCL nature of our multiethnic State Bd of Clonlára Riley, J.
VII Appeals, which held The decision of the Court were invalid be- compliance procedures that in accordance cause were not with the is reversed. apa, studies and
The teacher certification and social requirements interpretations are valid science statutory provisions. the relevant requirement 180-day year valid. concerning the correctness
We make no decision procedures of the other or inter- any compliance in the that were not addressed circuit pretations on Appeals appeal court or the Court of or raised in this Court. C.J., Brickley,
Cavanagh, Boyle, and JJ., J. Levin, Mallett, concurred with (concurring dissenting part J. Riley, part). I Edu Department Because find that Home Com Nonpublic cation’s School and School pliance private Procedure mandates which provide days and home schools of education is rule in violation of the invalidly promulgated MCL 24.201 et Act, Administrative Procedures seq.; seq., 3.560(101) et I separately. MSA write i 1986, Board of On October defendant State "Nonpublic adopted guidelines Education entitled Compliance School and Home School Procedures” (b)(1)(A) 27.3178(598.2)(a)(4), stating parents provide must children, including social studies an education to their classes, science and charges neglect. to avoid agree majority at issue were 1 I with the the other apa. pursuant interpretative statements valid *20 230 442 254 by Opinion Riley, J. act, MCL to enforce which proce- seq. seq.; The 15.1921 et et MSA 388.551 apa. pursuant to the not were dures The routinely procedures defen- mailed were families, as well as known home school
dant to carry out "to "staff instructions” districts as . . . .” law adopted by they procedures that were state The authority law,2 to define of and claim on defendant the cally, they Specifi "legal requirements” of home schools. will have "[a] home school direct that (1) requirements legal alia, if,” inter met certificated days (2) utilized, there are 180 instructor is (3) program comparable instruction, "a utilized, in instruction” is schools] of [to Recip cluding and science. in social studies classes complete at and file are also instructed ients tached information to evidence to defendant forms requests procedures. compliance form The giving instruction,” teacher of certified the "name days instruction, and the number the areas year given. procedures do instruction is they mandatory explain are not interpretations merely of the law. defendant’s application of instant case is At issue in the Appeals procedures. The Court invalidly procedures enacted were held apa;3 majority finds of the rules that violation mandating days procedure of school 180 interpretative law, of the statement invalid was an interpreta procedures valid were the other while tive statements law.4 388.551-388.558; explicitly MSA to MCL refer 15.1921-15.1928, seq., seq.; MCL MSA 15.41561 et 380.1561 et MCL Attorney 15.4653, unpublished opinion 380.653; General, 1961-1962, well as as 5579, OAG, 1979-1980, 18, 1961); (May No M-576 1979). p (September (1991). 332, 341; App 469 NW2d 245-248. Ante at State Bd n Riley, J.
II A Michigan’s citizens confront a monolithic and *21 sprawling bureaucracy touching nearly every state aspect of their lives.5 Undreamed of the Found ing Fathers, the advent of the modern bureau large lawmaking cratic state shifted a amount of Legislature traditionally in vested into often agencies appear insular largely administrative that day-to-day unaccountable for their activit growth pervasive ies.6 The unwieldy and influence of this Michigan
bureaucratic in structure was past so acute in the recent members Michigan Constitutional Convention of 1961 re apparatus "labyrinth ferred to the state as a resulting horrors or chamber of horrors” in " ” disintegration’ 'administrative due its over whelming complexity unaccountability. and 2 Offi p Record, cial Convention, Constitutional 1837 (comments omitted). (citation Bentley) of Mr. In response, bureaucracy part, by bridled, was through its creator the enactment of the apa.7 Michigan, legislative authority In the exercise of duly delegated agencies to administrative is re- 5 pervasiveness agencies of administrative cannot be denied: agencies grant deny practice professions, administrative operate natural gan licenses to businesses, automobiles, buildings, drive construct utilize resources, Bienenfeld, and determine the use of land. Michi- (2d ed), 1, p Agencies Administrative Law 2. § also "settle labor disputes, of paid, grant paroles set the amount of taxes to be to inmates institutions, penal utilities, public fix rates for determine welfare benefits, employment benefits, security disability worker’s benefits rights public employees, disputes and the and resolve election and disputes arising origin, race, color, from discrimination based on national sex, age, physical disability.” and Id. agencies justified The massive increase in administrative has been by legislators social, economic, cope as a means "to with massive political, technology, changes greater problems accompanied and environmental advances structure, population, in social increases in and population.” Bienenfeld, 3, supra, p concentrations of n 5 § thorough history apa, For a examination of the see Bienen- Opinion by Riley, J. apa prohibits making, to as rule and the
ferred making undergoing scru- strict rule without public participa- tiny through "public hearings, joint approval by notice, tion, administrative ments, committee on preparation rules, of state- process.” De- intervals each between Rights of for Human Handi- troit Base Coalition Dep’t capped Services, of Social (1988). 178; 428 NW2d hearing procedures notice The extensive and 'are calculated " mandated invite rule-making process, public participation in the prevent prevent precipitous agency, action adoption illegal may rules or that legislative notify beyond intent, affected persons and interested of the existence of readily rules, make the accessible after rules ” quoting adoption.’ 189-190, Bienenfeld, Id. at (1st ed), p Michigan 4,§ 4-1. Administrative Law *22 important, apa the is essential to the More preservation society. simply, Put of democratic oversight legislative scrutiny of without and agencies, by undertaken action administrative agencies such guards rule without the normal safe would republic. Indeed, apa the a bul our. ensuring pro liberty the law is wark of mulgated by persons directly accountable people.8 apa,
feld,
3,
supra,
pp
Legislature
In
to
the
n 5
2-4.
addition
the
§
Act,
seq.;
et
the
of Information
MCL 15.231
MSA
enacted
4.1801(1)
Freedom
Act,
seq.,
Open Meetings
seq.;
MCL 15.261 et
et
and
4.1800(11)
agencies
seq.,
et
were
to
MSA
the electorate.
constraints on administrative
to ensure that
accountable
Furthermore,
Michigan placed
people
significant
agencies through
enactment of the
constitution,
agen-
e.g.,
number
limits the
Constitution.
5, 2,
appointments
twenty,
cies
art
mandates that
heads
to
§
subject
principal departments
Senate,
to the advice and consent of the
5, 3,
Legislature
ability
suspend
to
with the
art
vests
§
sessions,
regulation
agency
any
promulgated by an
between
rule or
4, 37,
power
reorganize
in the
a broad
art
agencies
and vests
Governor
§
5,
efficiency,
promote
art
§
supra
(noting
See, e.g.,
Rights,
at 177-178
Coalition for Human
Bd of Ed
v State
Riley, J.
Accordingly,
a rule is
this Court has noted that
"
(a)
granted power,
only
valid
'if it is
within the
(c)
(b)
procedure,
pursuant
proper
issued
” Michigan
reasonable.’
Farm Bureau
Work
Compensation
141,
Bureau,
149;
men’s
408 Mich
(1980), quoting Davis,
apa effectively maintains over agencies, broadly administrative defined "rule” in apa: statement, regulation, agency "Rule” means an standard, policy, ruling, general or instruction of applicability implements applies or law en- agency, forced or administered or that prescribes organization, procedure, practice or amendment, agency, including suspen- of the sion, 24.207; .... recision thereof [MCL 3.560(107).]_ consequences many that because people,” rules have "serious of law for apa Legislature enacted the to ensure that " ” legislative to; process’ 'essential functions of the are adhered
hence,
question
whether an
violates the
"is a
decision-making authority”);
Dep’t
allocation of
Jordan v
of Correc-
(1987)
tions,
20,
(T.
App
Boyle, J„
Nevertheless, Court has this designed specifically was "rule” broad definition 'agencies to as inclination of label to "defeat the "guides,” "interpre "announcements,” "bulletins,” legal operation which, bulletins,” . . . and tive ” really effect, . . . .’ Coalition for amount to rules quoting Cooper, Rights, supra 183, at Human Acknowledging p Law, State Administrative maintaining public importance of control the vital agencies underlying and over administrative Michigan purpose "have shown courts apa, require agencies pursu strong tendency to act through than informal ant to formal rules rather (CA policies.” Spruytte Walters, 753 F2d 6, 1985). 3.560(107) 24.207; provides: MCL (g) intergovernmental, interagency, intra-agency mem- An directive, orandum, rights of, or communication that does affect to, public. practices available (h) instructions, statement, interpretive an A form pamphlet,
guideline, or other material an informational merely have of law but itself does not the force effect explanatory. (j) agency to or not to exercise a A decision exercise power, although private rights permissive statutory or interests are affected. *24 259 v State Bd of Ed Opinion Riley, J.
B Defendant maintains that because it has no rule-making authority, though guidelines even may substantially plaintiffs, have affected at worst misinterpreted it the law and did not violate the apa. majority agrees.11
Contrary
majority,
to the
I
conclusions of
guideline mandating
days
find that
180
school is an invalid rule
in violation
apa.
merely
of the
When an
"does not
interpret, but sets forth onto new substantive
ground through
binding,
rules that
it will make
legislative processes
must observe the
Legislature.
by”
Anthony, Interpre
laid down
policy
guidances,
rules,
statements,
manuals,
tive
agencies
and the like—Should federal
use them to
(1992).12
public?
1311,
bind the
41 Duke
1314
L J
Anthony
guidelines
Professor
cautions that while
"by
legally
like the one at issue
definition cannot
agencies
inappropriately
bind,
often
issue them
11
See,
position
support.
e.g.,
Metropoli-
Wayne Twp
This
has some
1992).
Davila,
(CA
485,
7,
tan School Dist v
969 F2d
489
12See, e.g.,
Rights,
184-185;Jordan,
supra
Coalition for Human
n
at
supra
("[a] policy
'interpre-
8
at 27
directive cannot be
an
considered
tive statement’ of a rule if it is in fact inconsistent with the rule or
provisions
go beyond
scope
rule”); Thomp-
contains
which
(1985)
Corrections,
29,
Dep’t
App
32;
v
son
143 Mich
371
472
NW2d
("the
'interpretative
directive could not be considered an
statement’ if
provisions
it were inconsistent with the rules or contained
which
beyond
rules”);
Corrections,
scope
Dep’t
went
Schinzel v
217,
(1983)("the
App
policy
124 Mich
with
regulated
or benefited
binding
upon
norm
Bureau, supra at
at 1315. See Farm
public.” Id.
Corrections,
Dep’t
Jordan
(Levin, J.);
162-163
(1987). Hence,
20, 29;
Nevertheless, policies holds that majority the their beyond or extend contradict clearly misinterpreta merely foundations are statutory statute, possess if the effect they even tions the of reasoning eviscerates dictates of law. Such apa. the incorrectly The dismisses majority agency that an without stat possibility real-world promulgate may still to rules utory authorization of law a rule with the force attempt to issue apa.14 conforming majority without apa circumvented permits easily to be dispositive inquiry agency’s label is not must directive, on see focus whether the rule.” the "actual action undertaken being implemented being policy has the effect of a agencies Anthony regard with to federal Professor reveals apa rulemaking requirements is "it manifest that of nonobservance fact, rules, Interpretive supra widespread.” Anthony, at 1316. In agen- Anthony in which federal Professor cies utilized twelve instances ments examines sixteen instances enforcement, nonlegislative policy in direct documents agencies had utilized such docu- which federal pass upon applications, five in which federal instances programs, agencies and seven had utilized such documents benefit agencies affecting programs ad- such documents utilized ministered federal by the states. Id. at 1332-1355. ignore Exacerbating tendency agencies is the challenges infrequency legal "because the affected to such rules delay litigation, private parties or cannot afford the cost accept agency practical needed reasons must other approval agency Id. at 1316- on terms sets.” benefit whatever State Bd of Ed Opinion by Riley, J. policies that enacts that are in effect bind ing and later claims that because it was not vested rule-making power, policy its was valid as a proper interpretation or, most, of the law at misinterpretation Meanwhile, of the law. the lives thousands, millions, if not of citizens would have by purported been dictated by nonrules agencies public participation without and in Legislature.15 contradiction to the will of the Such lawmaking only unauthorized not violates the apa, principles republican govern but threatens the agencies’ policies ment. Administrative have a everyday substantial effect on the lives of Michi gan’s simply citizens, and because an de rule-making authority, clares that no has or is exercising authority, should not enable it impunity to act with in violation of the law.16 majority inquire Furthermore, fails to into issue, the effect of the enly at and mistak only 180-day requirement asks whether legally binding.17 inquiry was The correct should 15Moreover, likely members of "[a]ffected to be *26 legal quality confused or misled about the reach and of the standards agency imposed.” Anthony, Interpretive rules, the Even "more tured when als, supra has at 1317. costly yet tendency overregulate is the to nur- is practice making binding guidances, the law manu- nonlegislative and memoranda is tolerated. If such actions can upon public practical visit legislative the the same effects as actions do, accomplish, (or, agency but are far easier to heads more fre- officials) quently, using subordinate will be enticed into them.” Id. Legislature policy, scope did not intend that the requirements easily Agency [apa] of the be so circumvented. pronouncements may within the definition of a rule have the practical although agency force and effect of a rule has not apa. requirements observed the notice and comment of the Bureau, supra at [Farm 162-163.]
17 Although (because plainly nonlegislative documents were they promulgated by procedures), were not notice-and-comment many courts regularly nevertheless cases have asked rules, legislative whether such documents "are” rather than interpretive the issue policy framing rules or statements. This method of begs question sake, precision’s the real .... For we Mich 230 Opinion by Riley, J. agency’s were in actions whether the
have been binding those affected or had the effect tended supra Rights, policy. Human Coalition 188.18 at
c nonlegislative general, is bind document "In a agency ing practical it the if treats matter as a legislative is, way as it rule —that treats a same dispositive leads that it addresses —or of the issues it treat to believe will the affected way.” Anthony, Interpretive rules, document Community App supra In Nutrition at 1328. See also Young, 294, 298-300; 818 DC US stitute (1987). nonlegislative "Certain indicia that F2d documents are clearly
binding practical this sense Interpretive Anthony, rules, identifiable.” example, "agency supra 1328. For enforcement at nonlegisla upon nonobservance action based action, document, be or the threat such tive speaks puts it clear intent to bind and indeed a proof eating is Here the into execution. rules, legislative must that these documents cannot "be” insist legislatively. these What the courts in as cases not issued were agency looking plainly was for was whether were legislative trying ... In rule that was in nature. to issue a short, attempt nonlegislative agency’s to action did bind rules, supra [Anthony, Interpretive public? at bind the affected 1327.] 18 Thus, question proper cases not whether in these is legislative Rather, ques- proper policy tion is is a rule. document nonlegislative been document should have whether key legislative rule in the circumstances. The issued as that question agency the document is Did the intend [clear]: given binding effect? If the answer Has the bind? "yes,” questions have the document should either of these rules, Interpretive legislative [Anthony, as rule. been issued supra Or, possess rule- no when the does at authority, making at all.] *27 Ed v State Bd of by Riley, J. although pudding.” agency may Moreover, Id.19 an policies it intend state did its to be binding, must court examine whether agency binding if it acted as were or had such an Broadcasting System, effect. Columbia Inc v States, 407, 416; 1194; United 316 US 62 S Ct 86 L (1942) ("[t]he particular placed upon label regulation] necessarily conclusive, [a is not it for is pur the substance of what ported the Commission has decisive”).20 has to do and done which is "private parties Furthermore, whether are reason ably led to believe that failure to conform will bring consequences, adverse such as enforcement application,” action denial of is vital to this Anthony, Interpretive supra rules, determination. private at parties participated Other factors include whether the pol in the of the formulation challenge icy, and the ease which to the docu policy Moreover, ments. Id. at 1330. when affects rights those binds or creates substantial changes procedure law, in substantive is a Rights, supra rule. Coalition for Human at 188- Similarly, procedure 189.21 if contradicts the 19See, e.g., Safety Jerri’s Ceramic Arts v Consumer Products Comm, (CA 4, 205, 1989); supra 299; Young, 874 F2d at Chamber OSHA, 192, 196, App of Commerce of the United States v 204 US DC 197, (1980). 7;n 636 F2d 464 Ruckelshaus, Corp App See also General v 239 US Motors DC ("if 408, (1984) 742 F2d 1561 its action the intends to law, duties, rights properly new the rule create a is considered to be legislative rule”); Edison Co v Detroit United States Environmental 1974) (CA ("the 244, 6, Agency, 496 F2d Protection tion mere invoca- epa statutory exceptions interpretative rules is not general requirements dispositive rulemaking as to whether Labor, 478, applicable”); Secretary Lewis-Mota 469 F2d (CA 1972) ("the particular agency puts upon label that 481-482 given not, power purposes, exercise of administrative for our its fact”). conclusive; rather it is what the does Jordan, (holding policy supra See also at 29 that a directive was rights changed, public, because it "the invalid rather interpret”); affected explained, purported merely than the terms of the rule it Schinzel, supra (holding at 220-221 rule invalid *28 by Riley, J. rule in viola
law, invalidly promulgated it is an apa. the Id.22 tion of case, meets procedure 180-day In the the instant 7 of rule as defined in definition of a the basic § apa binding the indicia of possesses the "an clearly 180-day procedure The policy. statement, standard, rul regulation, policy, that general applicability, of ing, or instruction enforced or adminis law implements applies organi the prescribes or that agency, the by tered the zation, procedure, practice ,”23 Moreover, binding the has procedure . . . procedure if First, as the defendant acted effect. all were mailed to procedures binding. were recipients directed home schools and known that adher required information form return an Defendant enforced the procedures. ence mandates, it all statutory as enforced procedure districts to en- instructed intermediate statutory authority it the on which was it altered definition based). 188-189, Rights, supra at this Court held In for Human Coalition "binding policy and af- administrative directive was that an fect[ed] invalidly promulgated rights public” rule: was an the merely for new are not mechanical details but, rather, represent hearings, the changes substantial conduct requirements the fair in the detailed conduct of rights
hearings under the Wel- to determine claimants’ Social applicable policy . This Act and federal . . bulletin fare represents law. present and therefore an alteration rules proper procedures set as a rule under the must out apa. sum, telephone hearing policy is inconsistent with In implemented existing rules and therefore cannot be without rulemaking. benefit of telephone hearing procedure has This Court concluded "[t]he change represents the full force and effect of law and alteration or change substantially department’s from the rule. The effort to hearings solely through its an internal manner in which it conducts policy purpose the fundamental bulletin and manual revision undermines . . . Id. at 189. .” 3.560(107). 24.207; MSA 23MCL State Bd Opinion by Riley, J. procedure parents Second, force the as law. who procedure undoubtedly received understood binding to be because it declared that it was Finally, authorized and defined the law.24 as majority, 180-day requirement found apa’s exceptions does not meet because it nonpublic act; contradicts the that act does days not mandate 180 of school for Although recognized schools.25 defendant procedure legally binding, prac was not its actions *29 tically bound home apa. in schools violation of the majority is correct in its conclusion that 180-day requirement legally ig bind, cannot but practical nores the and substantial effect of the guidelines. Regardless of the labels defendant at tempts place procedure, possessed on the no power 180-day requirement; pro to dictate a invalidly cedure, therefore, was an apa. rule violation of the J., concurred with
Griffin,
Riley,
J._
Young, supra
(noting
language
See
employed by
at 298
that "[t]he
pda
creating
describing
suggests
action levels
those levels
present
binding”).
both have a
effect and are
Houghton
Schools,
Community
State Bd of Ed. v
Lake
(1988)
("[t]here
legal duty