The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5565

September 20, 1979

ADMINISTRATIVE LAW AND PROCEDURE:

Declaratory rulings

STATE TENURE COMMISSION:

Declaratory rulings

A state agency has discretion to determine whether to issue or refrain from issuing a declaratory ruling as to the applicability to an actual state of facts of a statute or rule administered by the agency. However, a refusal to issue a declaratory ruling is subject to judicial review to determine whether the agency, in exercising its discretion to refuse to issue a declaratory ruling, acted arbitrarily.

Ms Joan Young

State Tenure Commission

Michigan Department of Education

Lansing, Michigan

My opinion has been requested on the following question:

Does the Administrative Procedures Act of 1969, 1969 PA 306, MCLA 24.201 et seq; MSA 3.560(101) et seq, Sec. 63, require the State Tenure Commission to issue declaratory rulings?

1969 PA 306, supra, Sec. 63 provides:

'On request of an interested person, an agency may issue a declaratory ruling as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency. An agency shall prescribe by rule the form for such a request and procedure for its submission, consideration and disposition. A declaratory ruling is binding on the agency and the person requesting it unless it is altered or set aside by any court. An agency may not retroactively change a declaratory ruling, but nothing in this subsection prevents an agency from prospectively changing a declaratory ruling, A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.' (emphasis added)

The State Tenure Commission is subject to the Administrative Procedures Act of 1969, supra, Henderson v Memphis School District, 57 Mich App 770; 226 NW2d 725 (1975), lv to appeal den, 394 Mich 763 (1975).

The term 'may' is permissive when used by the legislature in a statute in a context with the term 'shall.' Moore v Vrooman, 32 Mich 526 (1875).

Therefore, the use of the term 'may' in the Administrative Procedures Act of 1969, supra, Sec. 63, provides a state agency with discretion to issue or refrain from issuing declaratory rulings as to the applicability to an actual state of facts of a statute administered by the agency or of a rule or order of the agency.

However, even though the legislature has employed the term 'may' in the Administrative Procedures Act of 1969, Sec. 63, supra, the Court of Appeals in Human Rights Party v Corrections Commission, 76 Mich App 204; 256 NW2d 439 (1977), ly to app den, 402 Mich 106 (1978), held that the refusal to issue a declaratory ruling by an agency is, itself, subject to judicial review by a circuit court. The Court stated:

'. . . [P]laintiff seeks a declaratory ruling as to the applicability to an actual state of facts of a statute administered by defendants; specifically, overcrowded prison conditions vis-a-vis statutes concerning prison administration. Defendants, however, refuse to issue any declaratory ruling and the question becomes whether there is judicial review of this refusal. We are of the opinion that there is. Although this is not specifically provided for in the statute, we find that the intent of the Legislature in establishing this declaratory ruling provision is to afford judicial review of an agency's refusal to make any ruling. . . .' 76 Mich App at 209; 256 NW2d at 441

The scope of judicial review is that of determining whether the agency, in exercising its discretion to refuse to issue a declaratory ruling, acted arbitrarily. See Kent County Theater Corp v City of Grand Rapids, 14 Mich App 362; 165 NW2d 421 (1968), cited with approval by the Michigan Supreme Court in Alan v Wayne County, 388 Mich 210, 327; 202 NW2d 628, 685 (1972).

It should be noted that the refusal of the Tenure Commission to issue a declaratory ruling that gave rise to this opinion request was proper, since the request for a declaratory ruling was not based upon an actual state of facts as required by the Administrative Procedures Act of 1969, Sec. 63, supra.

Frank J. Kelley

Attorney General