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 MIKE COX, ATTORNEY
GENERAL CONST 1963, ART 5, § 5: MANUFACTURED HOUSING COMMISSION: Manufactured Housing Commission as examining or
licensing board of a profession under Const 1963, art 5, § 5 The Manufactured Housing Commission established under the Mobile
Home Commission Act, MCL 125.2301 et seq, is not an "appointed examining
or licensing board of a profession" within the meaning of Const 1963, art 5, §
5. Opinion No. 7163 September 28, 2004 Honorable
Valde Garcia You have asked whether the Manufactured Housing
Commission established under the Mobile Home Commission Act is an appointed
examining or licensing board of a profession within the meaning of Const 1963,
art 5, § 5, and if so, what professions the Commission
regulates. Your question requires consideration of whether the
Manufactured Housing Commission is an appointed board, whether it exercises
examining or licensing authority, and whether the activities over which any such
authority is exercised constitute a "profession" within the meaning of Const
1963, art 5, § 5. The Legislature created the Manufactured Housing Commission[1]
(Commission) in the Mobile Home Commission Act (Act), 1987 PA 96, MCL 125.2301
et seq, within the then Department of Commerce.[2]
MCL 125.2303(1). Section 3(2) of the Act, MCL 125.2303(2), provides
that each of the Commission's 11 members are appointed by the Governor with the
advice and consent of the Senate, making clear that the Commission is an
"appointed board" within the meaning of art 5, § 5. Membership of the Commission
must include each of the following: (a) A representative of an
organization whose membership consists of mobile home residents. (b) A representative of
financial institutions. (c) Two operators of a
licensed mobile home park having 100 or more sites and 1 operator of a licensed
mobile home park having less than 100 sites. (d) A representative of
organized labor. (e) An elected official of a
local government. (f) A licensed mobile home
dealer. (g) One resident of a licensed
mobile home park having 100 or more sites and 1 resident of a licensed mobile
home park having less than 100 sites. (h) A manufacturer of mobile
homes. [MCL 125.2303(3).] Regarding whether the Commission exercises "examining or
licensing" authority within the meaning of Const 1963, art 5, § 5, the title to
the Act provides an indication of its scope and is generally indicative of
legislative intent regarding the matters for which licensing is required:[3] AN ACT to create a mobile home commission; to prescribe its
powers and duties and those of local governments; to provide for a
mobile home code and the licensure, regulation, construction,
operation, and management of mobile home parks, the licensure and
regulation of retail sales dealers, warranties of mobile homes, and
service practices of dealers; to provide for the titling of mobile homes; to
prescribe the powers and duties of certain agencies and departments; to
provide remedies and penalties; to declare the act to be remedial; to repeal
this act on a specific date; and to repeal certain acts and parts of
acts. [Emphasis added.] The Act provides for three types of licensing powers – to grant
or deny initial licensure, to revoke or suspend an existing license, and to
renew an existing license. The Act divides these powers between the
Commission and the Department of Labor and Economic Growth (DLEG).
Generally speaking, under section 16 of the Act, the DLEG grants or denies
initial licenses and renewals for mobile home parks. MCL 125.2316(2) and
(3). Section 21 of the Act authorizes the Commission to grant, deny, or
renew licenses of individuals seeking to engage in certain specified
occupations: (1) A mobile home dealer shall
not engage in the retail sale of a mobile home without a license. (2) A mobile home dealer,
mobile home installer, or repairer may obtain an initial or renewal license by
filing with the commission an application together with consent to service
of process in a form prescribed by the commission pursuant to section 35. * * * (6) A licensed mobile home
dealer, mobile home installer, or repairer may file an application for the
license of a successor, whether or not the successor is then in existence, for
the unexpired portion of the year. The commission may grant or deny the
application. [MCL 125.2321(1), (2), and (6); emphasis added.] It is clear from reading the Act as a whole that the
Commission is statutorily empowered to engage in licensing of three distinct
occupations: retail sellers of new and used mobile homes; installers of mobile
homes; and repairers or servicers of mobile homes.[4]
Moreover, the Commission has exclusive authority to impose penalties on
licensees including censure, denial of new licensure, and revocation of an
existing license, MCL 125.2343(1). Accordingly, the Commission is an
"examining or licensing board"[5]
within the meaning of Const 1963, art 5, § 5. It must next be determined whether the Commission is a
licensing board "of a profession" as that term is used in Const 1963, art 5, §
5. In 100% Traverse City School Dist v100%
Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), the Michigan
Supreme Court stated the primary rule of constitutional construction: [When a] case requires the construction of a constitution,
[ ] the technical rules of statutory construction do not apply.
McCulloch v. Maryland (1819), 17 U.S. (4 Wheat) 316, 407
(4 L Ed 579). The primary rule is the
rule of "common understanding" described by Justice Cooley: "A constitution is made for
the people and by the people. The interpretation that should be given it is
that which reasonable minds, the great mass of the people themselves, would give
it. 'For as the Constitution does not derive its force from the
convention which framed, but from the people who ratified it, the intent to
be arrived at is that of the people, and it is not to be supposed that they
have looked for any dark or abstruse meaning in the words employed, but
rather that they have accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that that was the
sense designed to be conveyed.' (Cooley's Const Lim 81)." (Emphasis
added.) In House Speaker v Governor, 443 Mich 560, 580-581; 506
NW2d 190 (1993), after endorsing the rule of common understanding, the Court
described a second rule of constitutional construction:[6] [T]he second important rule of constitutional construction .
. . requires consideration of "'the circumstances surrounding the adoption of
the constitutional provision and the purpose sought to be accomplished . . .
.'" Soap & Detergent, 415 Mich 745, quoting Traverse City
School Dist, supra, 384 Mich 405. Of course, the most
instructive tool for discerning the circumstances surrounding the adoption of
the provision is the floor debates in the Constitutional Convention record.
However, we have noted previously that consideration of the debates is
limited because "[t]hey are individual expressions of concepts as the speakers
perceive them (or make an effort to explain them). Although they are
sometimes illuminating, affording a sense of direction, they are not decisive
as to the intent of the general convention (or of the people) in adopting the
measures." Regents of the Univ of Michigan v Michigan, 395 Mich
52, 59-60; 235 NW2d 1 (1975). Nevertheless, we have said that they are
particularly helpful "when we find in the debates a recurring thread of
explanation binding together the whole of a constitutional concept."
Id. at 60. Most recently, in People v Nutt, 469 Mich 565, 574 n 7;
677 NW2d 1 (2004), the Court emphasized that the meaning to be ascribed to the
Constitution is the meaning that the people understood in 1963 when the
Constitution was ratified – even if a different meaning might be preferred
today: Additionally, our task is not to impose on the constitutional
text at issue . . . the meaning we as judges would prefer, or even
the meaning the people of Michigan today would prefer, but to search for
contextual clues about what meaning the people who ratified the text in
1963 gave to it. [Mich. United Conservation Clubs v. Secretary of
State (After Remand), 464 Mich. 359, 375; 630 N.W.2d 297 (2001)
(Young, J., concurring) (emphasis in original).] Applying these rules of constitutional construction, OAG,
1975-1976, No 4899, p 181, 183 (October 23, 1975), summarized the purpose sought
to be accomplished by art 5, § 5, as expressed by the delegates to the
Constitutional Convention of 1961: As indicated by the record of the Constitutional Convention
1961, Official Record, Vol II, pp 1893-1895, Const 1963, art 5, § 5 was
enacted in part for the purpose of assuring that a majority of one
"profession" could not control a licensing or examining board of another
"profession" -- thereby controlling the "profession" itself. Special
note was made of the fact that the healing arts were separate and distinct
sciences and could not satisfactorily be governed by a competitive school of
healing. While the delegates discussed this provision as redressing a
problem that could arise in the healing arts, they did not discuss what was, or
was not, embraced within the word "profession." [7] Nor has any court
defined the scope of the word in the context of art 5, § 5.[8] In Michigan Rd Builders
Ass'n v Dep't of Management and Budget, 197 Mich App 636, 644-645; 495 NW2d
843 (1992), the Court endorsed the use of a dictionary to arrive at the common
meaning of language in the constitution: A provision creating and defining a right or power should be
read according to its natural, common, and most obvious meaning, and
consideration of dictionary definitions is appropriate. People v
Bissonette, 327 Mich 349, 356-357; 42 NW2d 113 (1950); Syntex
Laboratories, Inc v Dep't of Treasury, 188 Mich App 383, 386; 470 NW2d 665
(1991). See also Durant v Michigan, 456 Mich 175, 208; 566
NW2d 272 (1997) (relying on a dictionary definition to construe a constitutional
term). The United States Supreme Court relied upon the common
dictionary meaning of the word "profession" in United States v
Laws, 163 US 258, 266; 16 S Ct 998; 41 L Ed 151 (1896), quoted in OAG No
4899: One definition of a profession is an "employment, especially
an employment requiring a learned education, as those of divinity, law and
physic." (Worcester's Dictionary, title profession.) In the
Century Dictionary the definition of the word "profession" is given, among
others, as "A vocation in which a professed knowledge of some department of
science or learning is used by its practical application to the affairs of
others, either in advising, guiding, or teaching them, or in serving their
interests or welfare in the practice of an art founded on it. Formerly,
theology, law, and medicine were specifically known as the professions; but as
the applications of science and learning are extended to other departments of
affairs, other vocations also receive the name. The word implies professed
attainments in special knowledge as distinguished from mere skill. A
practical dealing with affairs as distinguished from mere study or
investigation; and an application of such knowledge to uses for others as a
vocation, as distinguished from its pursuit for its own
purposes." Webster's New Collegiate Dictionary,
2nd Edition (1956), p 674, provided a similar definition of
the term: The occupation, if not commercial, mechanical, agricultural,
or the like, to which one devotes oneself; a calling; as, . . . the learned
professions, of theology, law and medicine. 100% And Webster's Third New
International Dictionary (1968), p 1811, defined "profession": [A] calling requiring specialized knowledge and often long
and intensive preparation including instruction in skills and methods as well
as in the scientific, historical, or scholarly principles underlying such
skills and methods, maintaining by force of organization or concerted opinion
high standards of achievement and conduct, and committing its members to
continued study and to a kind of work which has for its prime purpose the
rendering of a public service. While these definitions do not convey precise, measurable
boundaries that outline the scope of the term "profession," they do describe the
characteristic attributes of those fields of endeavor that were commonly
understood to constitute professions. OAG No 4899 considered whether the word "profession" as
used in art 5, § 5 includes all licensed occupations and concluded: [W]here the legislature creates a regulatory board with power
to license and regulate an occupation, that occupation becomes a profession
within the meaning of Const 1963, art 5, § 5. [Id., at pp
183-184.] 100%That conclusion is not consistent with the common
meaning of the word "profession" as shown above, nor by the common meaning of
the word "occupation": That which occupies, or engages, the time and attention;
one's principal business; vocation. [Webster's New Collegiate
Dictionary, 2nd Edition (1956), p 581.] 100%Webster's Third New International
Dictionary100% (1968), p 1560, provides a similar definition of
"occupation": [T]he principal business of one's life: a craft, trade,
profession or other means of earning a living. The word "occupation" is broader in scope than the word
"profession." All professions are occupations, but not all occupations are
professions. Licensing alone does not transform an occupation into a
"profession" for purposes of art 5, § 5. To the extent it reaches a
contrary conclusion, OAG No 4899 no longer expresses the opinion of the Attorney
General.[9] Applying the applicable rules of constitutional
construction, in order to determine whether any particular occupation is also a
profession under art 5, § 5, it is necessary to assess the particular
attributes of the occupation and compare them to the commonly understood meaning
of "profession" discussed above. The constitution initially imposes that
duty on the Legislature. The Legislature is free to require that a
majority of an occupational licensing board be comprised of members of the
occupation, even if it is not required to do so by art 5, § 5. The broad
discretion of the Legislature is only restrained by art 5, § 5 if the members of
an appointed board are authorized to examine or license a "profession" as that
term was commonly understood when the constitution was adopted. With regard to the composition of the Commission that licenses
the occupations of manufactured housing dealer, installer, or repairer, the
Legislature has determined it is not restricted by art 5, § 5. The Mobile
Home Commission Act does not require that a majority of the Commission be
members of those occupations. MCL 125.2303(3). That legislative
judgment is subject to "the well-established rule that a statute is presumed to
be constitutional unless its unconstitutionality is clearly apparent."
McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999). Indeed, the Legislature's determination in that regard is
consistent with a 1974 opinion of the Attorney General, which applied art 5, § 5
to mobile home-related occupations. The Letter Opinion of the Attorney
General to Representative Bobby D. Crim, dated March 5, 1974 (the Crim Letter),
addressed the constitutionality of HB 5666, which provided for the creation of
an eight-member Mobile Home Commission, only four of whom were to be affiliated
with the mobile home industry.[10]
Noting that art 5, § 5 was relevant only if the manufacture and sale of
mobile homes and the operation of mobile home parks were "professions," the
opinion reviewed a number of definitions of the term and concluded that a person
engaged in these activities was not a member of a profession within the meaning
of art 5, § 5: In view of these authorities, it is my opinion that a person
engaged in the sale and manufacture of mobile homes and the operation of
mobile home parks is not a member of a profession within the scope of art 5, §
5. These activities are conducted primarily for financial gain and are
properly characterized as the production and sale of goods and related
services. [Crim Letter, dated March 5, 1974.] The Legislature's determination finds additional support
in the laws that govern the activities licensed by the Commission in the
manufactured housing area. The relevant provisions of the Mobile Home
Commission Act indicate that a manufactured housing dealer, installer, or
repairer seeking to obtain a license must file an application with consent to
service of process. MCL 125.2321(2). The license may be issued for
not more than one year, MCL 125.2321(3), and certain fees must be paid.
MCL 125.2321(4) and (5). In addition, a surety bond must be posted by
manufactured housing dealers under MCL 125.2322. These licensing
requirements do not involve the extended training or specialized education
commonly associated with professions. Based on those requirements and the
commonly understood meaning of the word "profession," the Legislature's judgment
that these occupations are not "professions" under art 5, § 5 is legally
sound. The Legislature, therefore, is not constitutionally
required to assure that membership on the Commission is comprised of a
majority of people in the manufactured housing industry. It is worth
emphasizing, however, that the Legislature commonly creates boards and
commissions with licensing and examining authority whose membership is comprised
of those with knowledge and expertise in the field they regulate. This can
represent wise public policy. Nothing in this opinion should be read to
discourage the Legislature from so exercising its discretion, nor from employing
any other organizational structure that it determines will most effectively
advance the public interest, consistent with the limitations of art 5, § 5. It is my opinion, therefore, that the Manufactured Housing
Commission established under the Mobile Home Commission Act, MCL 125.2301 et
seq, is not an "appointed examining or licensing board of a profession"
within the meaning of Const 1963, art 5, § 5. MIKE COX [1]
The Legislature created the "Mobile Home
Commission" in section 3(1) of the Mobile Home Commission Act, MCL 125.2303(1),
which was renamed the Manufactured Housing Commission in Executive Order
1997-12, ¶ C.1. [2]
The Department of Commerce was renamed the
Department of Consumer and Industry Services (DCIS) in Executive Order (EO)
1996-2, ¶ I.1. In paragraph II.3 of EO 1996-2, all the statutory
authority, duties, functions, and responsibilities of the Commission were
transferred from the Department of Commerce to the Director of the DCIS by a
Type II transfer. One year later, however, the same authority, powers,
duties, functions, and responsibilities, with the exception of rulemaking
authority, were transferred back to the Commission by EO 1997-12, ¶ C.1.
The DCIS was renamed the Department of Labor and Economic Growth in EO
2003-18, ¶ IIA.1. [3]
See House Speaker v Governor, 443 Mich 560,
591 n 37; 506 NW2d 190 (1993). [4]
The Mobile Home Code is a set of rules governing a
wide array of activities associated with manufactured housing promulgated under
MCL 125.2305. Under certain provisions of the Code, 2003 MR 14, R
125.1214g and 125.1214i, applications for licensure as a mobile home retailer
and as a mobile home installer and servicer are to be submitted on forms
"prescribed by the department." Those forms indicate that completed
applications "will be presented for approval to the Manufactured Housing
Commission at its next regularly scheduled meeting." [5] There is no constitutional distinction between a board
and a commission. Civil Service Comm v Dep't of Labor, 424 Mich
571, 599; 384 NW2d 728 (1986). [6]
There are
other rules that apply in special circumstances not present here. In
Silver Creek Drain Dist v Extrusions Division, 468 Mich 367, 375; 663
NW2d 436 (2003), the Court stated that, if "the constitutional language has no
plain meaning, but is a technical, legal term, we are to construe those words in
their technical, legal sense. Moreover, in that undertaking, we are to
rely on the understanding of the terms by those sophisticated in the law at the
time of the constitutional drafting and ratification." [7]
The language that became art 5, § 5 was not
originally included in Proposal 71 from the committee on the executive
branch. 1 Official Record, Constitutional Convention 1961, p 1766.
The framers perceived a need for such a provision during discussion of the
section that would impose a limit of 20 principal departments in state
government. Id., at 1767-1768. The reasons offered in support of
the 20-department limitation included comment that it "would not prohibit the
creation, for purposes of professional regulation, of professional or
quasi-professional licensing boards, made up in whole or in part of members of
the profession, in a department of professional standards or of licensing such
as now exist in several states." Id., at 1768.
See also, 2 Official Record, Constitutional Convention 1961, pp 1839-1840,
1893. The language in question was
added to Proposal 71 to limit the authority of the Legislature by requiring that
a majority of the members of an appointed professional examining or licensing
board be members of the profession. [8]
Nemer
v Michigan State Bd of Registration for Architects, Professional
Engineers and Land Surveyors, 20 Mich App 429, 434; 174 NW2d 293 (1969),
applied the provision based upon an assumption that architects, professional
engineers, and land surveyors are members of a profession under art 5, § 5, and
rejected an attempt by the Legislature to declare them to be members of the same
profession under that provision. The Court did not address what
constitutes a "profession." That issue has, however, been addressed in
opinions of the Attorney General. See, e.g., OAG, 1975-1976, No 4899, p
181 (October 23, 1975), supra, and Letter Opinion of the Attorney General
to Representative Bobby D. Crim, dated March 5, 1974,
infra. [9]
This opinion will not discuss those opinions
decided after OAG 4899, which essentially followed its approach. See, e.g., OAG,
1985-1986, No 6412, p 449 (December 26, 1986), and OAG, 1989-1990, No 6592, p
166 (July 10, 1989). [10]
House Bill 5666 was introduced during the
1973-1974 session of the Legislature, but it was not enacted into law.
House Bill 4181, however, was introduced in the 1975-1976 session and was
enacted into law as 1976 PA 419. Subsections 3(1) to (3) of 1976 PA 419
[then MCL 125.1103(1) to (3)] created a Mobile Home Commission in the then
Department of Commerce consisting of 11 members appointed by the Governor
identical in composition to that required under present MCL 125.2303(3).
State Senator
The Capitol
Lansing, MI
48918
Const 1963, art 5, § 5,
provides:
A majority of the members of an appointed examining or licensing board of
a profession shall be members of that profession.
Attorney General