Clonlara, Inc. v. State Bd. of Educ.
| Citation | 501 N.W.2d 88,442 Mich. 230 |
| Decision Date | 25 May 1993 |
| Docket Number | No. 91372,No. 3,91372,3 |
| Parties | , 83 Ed. Law Rep. 734 CLONLARA, INC., and Deborah McConnell, Plaintiffs-Appellees, v. STATE BOARD OF EDUCATION, Michigan Department of Education, Phillip E. Runkel, Superintendent of Public Instruction, Defendants-Appellants. Calender |
| Court | Supreme Court of Michigan |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Paul J. Zimmer, Jane D. Woodfin, Asst. Attys. Gen., for defendants-appellants.
The question presented is whether nonpublic school and home school compliance procedures, published in October, 1986, by the Department of Education pursuant to the nonpublic school act, 1 the compulsory school attendance act, 2 and the intermediate school districts act, 3 are invalid because they were not promulgated in accordance with the procedures requisite to rule making set forth in the Administrative Procedures Act. 4 We hold that the compliance procedures are not rules, and therefore are not invalid because they were not promulgated pursuant to the APA rule-making requirements. They are interpretive statements that do not have the force of law. 5
Clonlara, Inc., and Deborah McConnell commenced this action, seeking declaratory and injunctive relief barring the State Board of Education and the Department of Education 6 from enforcing the compliance procedures.
Clonlara and McConnell claimed that the compliance procedures constitute rules and are invalid because they were not promulgated in accordance with the APA, that the compliance procedures subject home school parents to prosecution under the compulsory attendance law 7 without providing an administrative hearing required by the nonpublic school act, 8 and that the compliance procedures are void for vagueness.
Clonlara is a private, nonreligious school that applies an alternate philosophy in the education of children. In addition to its campus program based in Ann Arbor, Clonlara offers curriculum and administrative assistance through its home based education program to parents who have chosen to educate their children at home.
Approximately five hundred families, including McConnell's family, have contracted for Clonlara's home school services. Since September, 1984, McConnell has educated her three school-age children at home with the aid of Clonlara. 9 The McConnell children receive substantially all their educational instruction from their mother at home, occasionally attending classes at the Clonlara campus. McConnell has a high school education, but does not have a teaching certificate or permit to teach either in elementary or secondary school.
During the six-month period preceding the February, 1989, hearing in the circuit court, the McConnell children attended approximately twelve hours of classes with certified teachers during eight visits to Clonlara. McConnell estimated that her children were in communication with certified teachers an average of 1.5 hours per day. This included telephone conversations with certified teachers at Clonlara and telephone and personal communication with three certified teachers who taught their children at home. 10
The compliance procedures were not promulgated in accordance with the APA rule-making requirements. The compliance procedures concern the collection and processing of information respecting the exercise of the department's supervisory authority under the nonpublic school act. The circumstances in which the department may institute enforcement proceedings for noncompliance with the provisions of the nonpublic school act are stated. 11 The compliance procedures also state that a home school shall provide instruction:
--by a certified teacher;
--in social studies and science classes;
--during a school year lasting at least 180 days.
The circuit judge issued a preliminary injunction that required the department to modify its information-gathering membership report form, but did not enjoin use of the compliance procedures.
After a hearing, the judge ruled that the compliance procedures were vague and arbitrary and "so shot through with problems" that it was impossible to separate those procedures that met legal requirements and standards set forth by law, and those that did not. He said that instruction of home school pupils must be provided by certified teachers, but concluded that (1) home school pupils need not receive 180 days of instruction each school year, (2) the course of study to be taught in home schools need not include social studies and science, and (3) the department could not interpret the term "instruction" as used in the nonpublic school act, because the Legislature did not define it.
The Court of Appeals affirmed on different grounds. 12 The Court held that the compliance procedures were rules that had not been promulgated in accordance with the APA and were therefore void. The Court said that the compliance procedures were rules because they "prescribe the procedures involved in applying the law enforced or administered by the school agency." 13
It has been said that "[a]n agency's authority to adopt rules is typically provided for in the statute creating the agency and vesting it with certain powers," and that "[r]ulemaking authority may also be inferred from other statutory authority granted to an agency." 14 Bienenfeld, Michigan Administrative Law (2d ed), ch 4, pp. 18, 19. This Court has said that "what is essential to a valid ... Michigan 'rule' is: a reasonable exercise of legislatively delegated power, pursuant to proper procedure." 15
In February, 1986, an assistant attorney general wrote the Superintendent of Public Instruction in response to his inquiry whether the Department of Education has the authority to promulgate rules regulating home schools pursuant to the nonpublic school act. He observed that there is no express grant of rule-making authority in the act. He said that in the sixty-five years since its enactment, the department had not promulgated any rules pursuant to the nonpublic school act. He concluded that the department does not have the authority to promulgate rules regulating home schools pursuant to the nonpublic school act.
In contrast with the nonpublic school act, the School Code authorizes the State Board of Education to promulgate rules in a number of areas. 16
Rules adopted by an agency in accordance with the APA have the force and effect of law. They must be promulgated in accordance with the procedures set forth in the APA, and are not valid if those procedures are not followed. 17 Where, however, the agency has not been empowered to promulgate rules, policy statements issued by it need not be promulgated in accordance with APA procedures and do not have the force of law. Such statements are so-called "interpretive rules." As expressed by Professor Davis, "An interpretive rule is any rule an agency issues without exercising delegated legislative power to make law through rules." 18
The APA provides:
" 'Rule' means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or recision thereof...." 19
Specifically excluded from the definition of "rule" are:
"(g) An intergovernmental, interagency, or intra- memorandum, directive, or communication that does not affect the rights of, or procedures and practices available to, the public.
(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.
* * * * * *
(j) A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected." 20
Agencies have the authority to interpret the statutes they are bound to administer and enforce. 21
Legislative rules have the force of law. Interpretive "rules" state an agency's interpretation of a statute. Legislative rules are enforceable in and of themselves. But an agency must rely on the underlying statute to support its reading of a statute set forth in an interpretive "rule."
Bienenfeld, supra, ch. 4, p. 18.
* * * * * *
"If the rule represents something more than the agency's opinion as to what the statute requires--if the legislature has delegated a measure of legislative power to the agency, and has provided a statutory sanction for violation of such rules as the agency may adopt--then the rule may properly be described as legislative." 1 Cooper, State Administrative Law, pp. 174-175.
The compliance procedures state in what circumstances the Department of Education will consider a home school to be violative of the nonpublic school act. The department is obliged to hold a hearing when it contends that a home...
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