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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. 6099

September 9, 1982

EDUCATION, DEPARTMENT OF:

Membership of special education advisory committee

The Legislature has mandated that the special education advisory committee authorized by 1964 PA 287, Sec. 9a be comprised of nine members.

1964 PA 287, Sec. 9a, providing for a special education advisory committee to be composed of nine members, is not preempted by federal law.

Mr. Phillip E. Runkel

Superintendent of Public Instruction

Department of Education

Michigan National Tower

Lansing, Michigan 48909

You have requested my opinion on the following questions:

1. Does 1964 PA 287, Sec. 9a; MCLA 388.1009a; MSA 15.1023(9a); mandate that the special education advisory committee be comprised of nine members?

2. If the answer to the first question is yes, is 1964 PA 287, Sec. 9a, supra, preempted by the Education of All Handicapped Children Act of 1975, Sec. 613(a)(12), 89 Stat 773, 784; 20 USC 1413(a)(12)?

1964 PA 287, Sec. 9a, supra, provides:

'The special education advisory committee is created in the department of education and consists of 9 members, who shall be appointed by the state board of education for terms of 3 years, except that of the members first appointed 3 each shall be appointed for terms of 1, 2 and 3 years. The person within the department directly responsible for special education programs shall be an ex officio member of the committee. Each year the committee shall elect its chairman and such other officers as it deems necessary. Members of the committee shall be reimbursed for expenses incurred in performing their functions. The committee shall act as an advisor to the state board of education in the field of special education.

In this section, the Legislature has clearly specified that the committee consist of nine members who shall serve three-year staggered terms, with three members being appointed each year. It is a cardinal rule of statutory construction that the Legislature must be held to intend the meaning which it has plainly expressed, and in such cases there is no room for statutory construction or attempted interpretation to vary such meaning. MacQueen v City Commission of City of Port Huron, 194 Mich 328, 342; 160 NW 627 (1916); Nordman v Calhoun, 332 Mich 460, 465; 51 NW2d 906 (1952).

It is my opinion, therefore, that 1964 PA 287, Sec. 9a, supra, mandates that the special education advisory committee be comprised of nine members.

Turning to your second question, 89 Stat 784 (1975); 20 USC 1413(a)(12) requires that any state participating in the program established under the federal statute must submit a state plan which must

'provide that the State has an advisory panel, appointed by the Governor or any other official authorized under State law to make such appointments, composed of individuals involved in or concerned with the education of handicapped children, including handicapped individuals, teachers, parents or guardians of handicapped children, State and local education officials, and administrators of programs for handicapped children, which (A) advises the State educational agency of unmet needs within the State in the education of handicapped children, (B) comments publicly on any rules or regulations proposed for issuance by the State regarding the education of handicapped children and the procedures for distribution of funds under this subchapter, and (C) assists the State in developing and reporting such data and evaluations as may assist the Commissioner in the performance of his responsibilities under section 1418 of this title.'

The implementing federal regulations in 34 CFR 300.651 require that the advisory panel include 'at least one person representative of each' of the five groups specified in the statutory provision: handicapped individuals; teachers of handicapped children; parents of handicapped children; state and local educational officials; and special education program administrators. The regulation further provides:

'The State may expand the advisory panel to include additional persons in the groups listed in paragraph (a) and representatives of other groups not listed.'

Under the federal statute and regulations, the state advisory panel may have as few as five members. The Legislature, in its wisdom, has determined that the Michigan advisory committee, pursuant to 1964 PA 287, Sec. 9a, supra, be comprised of nine members. Nothing in the state statute prevents the members appointed from being representative of each of the groups required to be represented by federal law, nor does any language in the state statute inhibit the committee's ability to perform the three functions assigned to the committee by federal law. On the question of federal preemption of state law, the United States Supreme Court has held:

'In determining whether state regulation has been pre-empted by federal action, 'the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State." (Citations omitted.) Huron Portland Cement Co v City of Detroit, 362 US 440, 443, 80 S Ct 813, 4 L Ed 2d 852 (1960).

Here there is no 'actual conflict' between federal and state law. The federal act provides that the panel be appointed under state law and grants the state great discretion to determine both the composition and number of members of the advisory panel beyond the five representative members required by federal law.

In answer to your second question, it is my opinion that 1964 PA 287, Sec. 9a, supra, is not preempted by 20 USC 1413(a)(12).

Frank J. Kelley

Attorney General


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