STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6402

December 1, 1986

CONSTITUTIONAL LAW:

Const 1963, art 4, Sec. 24--notice of repeal of statute in title of act

FISH AND GAME:

Catching of certain species of fish with gill nets

INCOME TAX, STATE:

Heating fuel credits

PRUDENT PURCHASER ACT:

Inclusion of a pharmacist or pharmacy selling drugs at retail

SUNSET LAW:

Notice of repeal of statute in title of act

WORKER'S DISABILITY COMPENSATION ACT:

Validity of repeal of compensation and diseases and disablements provisions added to Act

1985 PA 103, the title of which stated, in part, that MCL 418.301; MSA 17.237(301), the compensation section, and MCL 418.401; MSA 17.237(401), the diseases and disablement section, were being added to the Worker's Disability Compensation Act of 1969, and that certain sections of this Act were to be repealed on specific dates, was enacted in compliance with Const 1963, art 4, Sec. 24. MCL 418.301 and 418.401; MSA 17.237(301) and 17.237(401), are repealed as of January 1, 1987.

The home heating tax credits provided by MCL 206.527a; MSA 7.557(1527a), will not be available after the 1986 tax year unless the Legislature acts to extend the tax credits.

MCL 308.5a(4); MSA 13.1496(1)(4), providing for the repeal effective December 31, 1986 of the section regulating the taking, catching, or attempting to take or catch certain species of fish with gill nets in certain waters of the State of Michigan is unconstitutional as violative of Const 1963, art 4, Sec. 24.

As provided in MCL 550.52(d); MSA 24.650(52)(d), prudent purchaser agreements may be entered into with all health care providers, except a pharmacist or a pharmacy in the retail sale of drugs, and prudent purchaser agreements may be entered into with a pharmacist or a pharmacy in the retail sale of drugs on January 1, 1987, as ordered by the Legislature.

Honorable Phil Arthurhultz

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on whether the repeal, expiration, or nonapplication clauses of the following statutes were enacted in violation of Const 1963, art 4, Sec. 24:

Each statute in question will be separately considered.

(1) MCL 418.301

and 418.401;

MSA 17.237(301) and 17.237(401)

1985 PA 103 amended the Worker's Disability Compensation Act of 1969, inter alia, to add MCL 418.301; MSA 17.237(301), the compensation section, containing a subsection (13) providing that "[t]his section is repealed as of January 1, 1987," and to add MCL 418.401; MSA 17.237(401), the diseases and disablements section, containing a subsection (9) providing that "[t]his section is repealed as of January 1, 1987."

The title to amendatory 1985 PA 103 states:

The Legislature enacted 1985 PA 103, in pertinent part, in response to a letter opinion addressed to Governor James J. Blanchard, dated July 2, 1985, which reviewed in light of Const 1963, art 4, Sec. 24, the predecessor sections, MCL 418.301 and 418.401; MSA 17.237(301) and 17.237(401), as amended by 1984 PA 304. The opinion concluded that because the title to 1984 PA 304 gave notice of the intent of the Legislature to amend these sections of the Worker's Disability Compensation Act of 1969, but did not give notice to the members of the Legislature and to the public of its purpose to repeal those sections on a future date certain, the sunset provisions contained in MCL 418.301 and 418.401; MSA 17.237(301) and 17.237(401), as amended by 1984 PA 304, were not enacted in compliance with Const 1963, art 4, Sec. 24.

OAG, 1985-1986, No 6310, p 126 (July 29, 1985), relied upon the aforesaid letter opinion and concluded that statutory provisions calling for expiration or nonapplication of the statute upon a date certain serve to repeal the statute on that date. See also, OAG, 1985-1986, No 6309, p 122 (July 29, 1985); OAG, 1985-1986, No 6363, p 285 (May 29, 1986).

The constitutional test as applied in the letter opinion to Governor James J. Blanchard, dated July 2, 1985, and in OAG, 1985-1986, No 6310, supra, holds that where the Legislature adds or amends a section or sections of a statute and provides that the added or amended section or sections of the statute are to be repealed, expire, or have nonapplication on a future date, notice of the repeal, expiration, or nonapplication of the statutory section or sections added or amended must be provided the members of the Legislature and to the public in order to comply with Const 1963, art 4, Sec. 24.

As originally introduced as 1985 SB 7, the title to 1985 PA 103 made no reference to the repeal of certain sections of the act, certain acts, or parts of acts on specific dates. By the Joint Conference Committee Report set forth at 2 SJ 1630 (1985), the Senate and House agreed to amend the title of the bill to include sections 301 and 401 within the "added sections" enumerated in the title and provided the following pertinent notice provisions:

The title contained in the Joint Conference Committee Report was approved by both Houses and became the title of 1985 PA 103. HJ, No 80, p 1803 (1985); 2 SJ 1631 (1985).

A study of the legislative history of amendatory 1985 PA 103 manifests the intent of the Legislature, as reflected in the approved Joint Conference Committee Report, that the title provision state that the compensation and diseases and disablements sections added to the Worker's Disability Compensation Act of 1969 thereby be repealed on specific dates be added to the title to provide the necessary notice to the Legislature and public that the newly added Secs. 301 and 401 shall be repealed on a date certain.

While the title to 1985 SB 7 enacted as amendatory 1985 PA 103 may be inartfully drawn, nevertheless, both the members of the Legislature and the people were put on notice thereby that "certain sections of this act" were to be repealed "on specific dates." Upon examination of the legislative history of 1985 SB 7, including the Joint Conference Committee Report, the title to 1985 PA 103 gave notice that pertinent sections added by this legislation were to be repealed on specific dates. Thus, the title to Enrolled 1985 SB 7 enacted into law as 1985 PA 103 complies substantially with the mandates of Const 1963, art 4, Sec. 24.

It is my opinion, therefore, that 1985 PA 103, the title of which stated, in part, that MCL 418.301; MSA 17.237(301), the compensation section, and MCL 418.401; MSA 17.237(401), the diseases and disablement section, were being added to the Worker's Disability Compensation Act of 1969, and that certain sections of this Act were to be repealed on specific dates, was enacted in compliance with Const 1963, art 4, Sec. 24. MCL 418.301 and 418.401; MSA 17.237(301) and 17.237(401), are repealed as of January 1, 1987.

(2) MCL 125.1712(1)(e)

; MSA 3.540(112)(1)(e)

The Derezinski-Geerlings Job Development Authority Act, MCL 125.1712(1)(e); MSA 3.540(112)(1)(e), empowered the Job Development Authority to issue agricultural development revenue bonds, but also provided that "this subdivision shall not apply after December 31, 1984."

Because the Legislature repealed MCL 125.1712(1)(e); MSA 3.540(112)(1)(e), by means of 1984 PA 270, effective March 29, 1985, your question is moot and no answer is required.

(3) MCL 206.527a

; MSA 7.557(1527a)

The third statutory provision with which you have expressed concern, namely, MCL 206.527(a); MSA 7.557(1527a) is actually the fourth and last legislative version of a temporary, four-part experimental undertaking, or, perhaps, testing of a new concept in social legislation probing the need and cost of an endeavor to alleviate the burden of winter heating fuel expenditures regularly experienced by low-income householders in the State. Initiated in 1978 the initial phase of the experiment was for a one-year period only as provided in MCL 206.257; MSA 7.557(1527) enacted into law as 1978 PA 458; it covered only the 1978 tax year. The second phase evaluated the experience of the first year and resulted in the enactment of 1979 PA 126 as MCL 206.527a; MSA 7.557(1527a); it covered only the tax years ending December 31, 1979 and December 31, 1980. House Legislative Analysis Section, 1979 HB 4726 as enrolled, Second Analysis (11-5-79). The third phase covered the tax years ending December 31, 1981, December 31, 1982 and December 31, 1983 as provided by 1981 PA 152.

The fourth phase of the experiment was authorized by 1984 PA 36. It is with respect to this public act that you have requested my opinion. However, to respond only with respect to the 1984 act would be approaching the inquiry out of context. Therefore, I shall analyze the statutory problem which you have raised in light of the overall experimental social program out of which it has arisen. Looked at in retrospect it was a piecemeal approach apparently borne of cautious concern lest, if adopted outright, it might prove to be either too costly, or, worse, ineffective. The foregoing four public acts which have served first to bring into being MCL 206.257; MSA 7.557(1527) and then MCL 206.527a; MSA 7.557(1527a) into being and to its present state will be analyzed in their legislative and chronological sequence.

The Legislature first provided certain state income tax credits to persons eligible to cover a portion of their homestead heating fuel costs in MCL 206.527; MSA 7.557(1527). It was added to the State Income Tax Act by 1978 PA 458 on a temporary and experimental basis for the tax year of 1978 only. MCL 206.527; MSA 7.557(1527) expired by its own terms. Based upon the year's experience, the Legislature enacted 1979 PA 126 on a temporary, experimental basis as MCL 206.527a; MSA 7.557(1527a) for the tax years ending December 31, 1979 and December 31, 1979. The unique program to help low-income householders was refined. It further provided in subsection (1)(11) that the revenue division of the Department of Treasury shall complete a study by August 1, 1981 of the actual heating costs of each claimant who received a payment from the department under this section for the 1980 tax year. Thus, it was a single purpose and specified duration section for "the taxable year ending December 31, 1979" and for "the tax year ending December 31, 1980," after which the revenue division of the Department of Treasury was to complete a study.

It is to be noted that subsection (1)(13) states: "This section shall apply only to the 1979 and 1980 tax years." Inasmuch as the dispositive provisions clearly demonstrate that it is an experimental heating cost assistance program intended for low income householders for two specific tax years only, namely, tax years ending on December 31, 1979, and on December 31, 1980 (see subsections (1)(a), (1)(b), (1)(c)(i) and (1)(c)(ii)), the section expired by its own limitations. Therefore, subsection (1)(13) served no useful purpose and may be considered as surplusage.

1981 PA 152 undertook to improve the experimental program and extend the initial experimental heating cost assistance to low income householders program on a temporary basis for the tax years ending December 31, 1981, December 31, 1982, and December 31, 1983. House Legislative Analysis Section, HB 4410 as enrolled, Second Analysis (12-4-81). Except for an upward adjustment of the credit with respect to the several exemptions, the 1981 act substantially was the same as its predecessor, including subsection (11) which mandated annual studies by August 1 of each year through 1984 of the actual heating costs of each claimant who received a payment from the revenue division of the Department of Treasury for the tax years through 1983. MCL 206.527a(1)(13); MSA 7.557(1527a)(1)(13), provided:

Here, too, the dispositive provisions of 1981 PA 152 reflect that the act continues the previous program on a temporary basis for the tax years 1981, 1982 and 1983. At the end of 1983, the program no longer exists on the statute books because it expired by its own limitations. For this reason subsection (11) serves no useful purpose and, as such, it may be considered surplusage.

The fourth and last public act, namely, 1984 PA 36, of this four-phase experiment presents a statutory interpretation problem as to its intended duration because, when read as a whole, it is unclear whether it was intended to cover only 1984 and 1985 tax years, or whether the legislative intent was that the experiment should extend through the 1986 tax year.

In pertinent part, subsection (1)(b)(ii) of MCL 206.527a; MSA 7.557(1527a), as amended by 1984 PA 36, appears to cover only the 1984 and the 1985 tax years. It is only by considering subsection (12) of section 527a of the 1984 Public Act that the reader is apprised of the patent conflict in the act, for it states that the section is not to apply after the 1986 tax year. From the standpoint of whether subsection (12) has any dispositive viability as a statute, it is clear that it does not because the dispositive provisions are with respect to only "the 1984 tax year" and "the 1985 tax year". Subsection (12), however, reflects the intent of the Legislature to continue the experiment through the 1986 tax year.

A study of the legislative history of 1984 PA 36 is not only appropriate but instructive in this regard. Luttrell v Department of Corrections, 421 Mich 93, 103-104; 365 NW2d 74, reh den, 422 Mich 1201 (1985). The House Legislative Analysis Section, Analysis of 1984 HB 4971, as enrolled, Public Act 36 of 1984, Third Analysis (5-2-85), states unequivocally that the bill would amend the State Income Tax Act to restructure the home heating tax credit and extend it through the 1986 tax year.

The benefits of home heating credits on the state income tax have, thus, been provided on a temporary, experimental basis by the Legislature for a limited number of tax years only. The benefits of home heating credits were continued to be made available and were, in fact, claimed by eligible taxpayers for the 1984 and 1985 tax years.

While amendatory 1984 PA 36 is cast in terms that the heating fuel cost tax credits shall not apply after the 1986 tax year, and it is to be observed that there is no certainty as to what a court may do if the statute were challenged, nonetheless, in light of the manifest legislative intent explicated above, it is unlikely that a court would read the provisions of 1984 PA 36 literally as a repeal of MCL 206.527a; MSA 7.557(1) where the title gave no notice of a repeal so as to compel persons in receipt of home heating income tax credits to repay the amount of the credits claimed in the 1984 and 1985 tax years. MCL 206.527a; MSA 7.557(1527a) must be read to extend the tax credit through the 1986 tax year in order to give effect to the manifest legislative intent.

The extension of tax credits by means of amendatory 1984 PA 36 does not implicate Const 1963, art 4, Sec. 24. The title to 1984 PA 36 is not violative of Const 1963, art 4, Sec. 24 because it gave notice in its title of the amendment to MCL 206.527a; MSA 7.557(1527a), which extended the home heating tax credit benefit on a temporary basis for a limited number of tax years only.

It is my opinion, therefore, that the home heating tax credits provided by MCL 206.527a; MSA 7.557(1527a), will not be available after the 1986 tax year unless the Legislature acts to extend the tax credits.

(4) MCL 308.5a

; MSA 13.1496(1)

1984 PA 392 amended 1929 PA 84 to add MCL 308.5a; MSA 13.1496(1), to provide for the regulation of the taking, catching, or attempting to take or catch certain species of fish with a gill net, pound net, or trap net in certain waters of the State of Michigan. It contained a subsection (4) which stated that "[t]his section shall not apply after December 31, 1986." The title to amendatory 1984 PA 392 provided that it is "AN ACT to amend Act No. 84 of the Public Acts of 1929, ... by adding section 5a."

OAG, 1985-1986, No 6310, supra, stated that a statutory provision which made a portion of a statute not apply after a certain date served to repeal that part of the statute on the date certain. The opinion further concluded that where the Legislature enacted a statute to add a statute and provided that the added statute would be repealed after a date certain, the statute was enacted in violation of Const 1963, art 4, Sec. 24, for failure to give notice in the title of the repeal of the statute. OAG, 1985-1986, No 6363, p 285 (May 19, 1986).

The title to 1984 PA 392 may not be distinguished from the titles and statutes reviewed and found to be enacted in violation of Const 1963, art 4, Sec. 24, in OAG, 1985-1986, No 6310, supra, and OAG, 1985-1986, No 6363, supra.

The Legislature has provided in MCL 8.5; MSA 2.216, that acts are severable to the end that the remaining portions of statutes which can be given effect without the invalid portions are to be given operative effect. MCL 308.5a(1)-(3); MSA 13.1496(1), subsections (1)-(3), are complete, independent, and capable of execution so they are severable. OAG, 1985-1986, No 6363, supra; OAG, 1979-1980, No 5688, p 723 (April 21, 1980).

If it is the will of the Legislature that MCL 308.5a; MSA 13.1496(1), be repealed effective January 1, 1987, this objective may be accomplished by enactment in accordance with Const 1963, art 4, Sec. 24, of a bill repealing the statute.

It is my opinion, therefore, that MCL 308.5a(4); MSA 13.1496(1)(4), providing for the repeal effective December 31, 1986 of the section regulating the taking, catching, or attempting to take or catch certain species of fish with gill nets in certain waters of the State of Michigan is unconstitutional as violative of Const 1963, art 4, Sec. 24.

(5) MCL 550.52(d)

; MSA 24.650(52)(d)

The final statute listed in your inquiry is a portion of the Prudent Purchaser Act which authorizes certain organizations composed of insurers, health maintenance organizations, dental care, hospital service care, medical care, and health care corporations or third party administrators to enter into prudent purchaser agreements with health care providers. For purposes of the Act, MCL 550.52(d); MSA 24.650(52)(d), provides the following definition:

At the outset, from a plain reading of this statute, it is patent that this provision is not a "sunset" statute since it contains no provision for its repeal on a date certain. Rather, the Legislature has manifested its intent that the Prudent Purchaser Act will not include a pharmacist or pharmacy engaged in the retail sale of drugs within its ambit until January 1, 1987.

The legislative power of the people, exercised by their agent, the Legislature, is limited only by the State and Federal Constitutions. Oakland County Taxpayers' League v Oakland County Supervisors, 355 Mich 305, 323; 94 NW2d 875 (1959).

The right of the Legislature to fix a future date for the operation of a statute is not open to question. Price v. Hopkins, 13 Mich 318 (1865).

Since MCL 550.52(d); MSA 24.650(52)(d), contains no provision calling for its repeal, Const 1963, art 4, Sec. 24, is not involved. There is no other provision of Const 1963 limiting the authority of the Legislature to fix a future date for operation of a statute.

It is my opinion, therefore, that as provided in MCL 550.52(d); MSA 24.650(52)(d), prudent purchaser agreements may be entered into with all health care providers, except a pharmacist or a pharmacy engaged in the retail sale of drugs, and prudent purchaser agreements may be entered into with a pharmacist or a pharmacy engaged in the retail sale of drugs on January 1, 1987, as ordered by the Legislature.

Frank J. Kelley

Attorney General