Erickson v. Department of Social Services

Bronson, J.

(dissenting). Plaintiffs instituted

this action to obtain an injunction restraining defendants from using a particular residential structure as a child caring institution. See MCL 722.111(b); MSA 25.358(ll)(b). The trial court granted a permanent injunction in December, 1980. The court held that the child care organizations act1 did not provide for the licensure of state *482operated residential child caring facilities. Consequently, the court concluded that a state run, as opposed to a state licensed, facility was not eligible for the benefits of the Township Rural Zoning Act2 which makes a state licensed child caring facility, providing care for six or less persons, a residential user eligible for operation in locally zoned residential areas. See MCL 125.286a(2); MSA 5.2963(16a)(2). Defendants appeal this determination as of right. The sole issue on appeal is whether an "evaluated and approved” state run child caring facility, which need not be licensed pursuant to the child care organizations act, MCL 722.116; MSA 25.358(16), is eligible to claim the benefit of the Township Rural Zoning Act’s definition of residential use.

Resolution of the problem at hand requires us to determine the relationship between various statutory provisions. The first of these provisions, MCL 722.115(1); MSA 25.358(15)(1), requires that any nongovernmental entity operating a child care organization be licensed or registered by the Department of Social Services (DSS). Comparable child care. facilities run by local or state units of government need only be "evaluated and approved” by DSS to legally operate. MCL 722.116; MSA 25.358(16). It must be noted, however, that this evaluation and approval is to be extended in accordance with the very same statutory provisions and rules governing the licensure of nongovernmental child caring facilities.

The preeminent duty of any court construing legislation is to ascertain and effectuate the will of the Legislature. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956), Avon Twp v State Boundary Comm, 96 Mich App *483736, 743; 293 NW2d 691 (1980). All other rules of construction are applied only to fulfill this foremost obligation. In this case, as will be developed below, I believe that application of the principle that a statute is to be construed in such a way that every word of it is rendered effective and no part of it is left without meaning,3 in conjunction with the rule of reason, leads to the conclusion that the permanent injunction entered by the lower court must be dissolved.

The child care organizations act states:

" 'Licensee’ means a person, partnership, firm, corporation, association, nongovernmental, or local or state government child care organization, which has been issued a license to operate a child care organization.” MCL 722.111(g); MSA 25.358(ll)(g).

While at first glance this definition seems straightforward, closer scrutiny reveals an ambiguity. The definition of licensee explicitly includes local or state government child care organizations which have been issued a license. However, as the lower court noted, nothing in the child care organizations act provides for the licensure of govern-mentally operated child care facilities. Consequently, the inclusion of "local or state government child care organization” within the definition of "licensee” is rendered meaningless if we construe MCL 722.111(g); MSA 25.358(ll)(g) literally. I cannot accept that the Legislature meant nothing by this language which is made ineffective by the majority’s decision to uphold the lower court.

As noted previously, privately run licensed facilities and governmentally evaluated and approved facilities are subject to the same statutory provi*484sions and rules concerning their mode of operation. The only important distinction between governmental and private facilities is that a govern-mentally run facility need not have the approval of the DSS to lawfully operate. However, if this approval is not obtained, no state funds can be appropriated for the continued operation of the facility. At least insofar as a state run facility is concerned, the effect of a lack of approval is identical to denial or revocation of a license in respect to a privately run child care organization. As a practical matter, it is inherently unlikely that a local unit of government would operate a child care facility if it could not receive monies from the state. Thus, to the extent that the majority considers it significant that, theoretically, a government child care facility could exist without adhering to the requirements imposed by the child care organizations act, I disagree that this tends to show an intent on the part of the Legislature to preclude governmentally run facilities from claiming the benefits of MCL 125.286(a)(2); MSA 5.2963(16a)(2). Moreover, as the majority notes, a governmentally run facility is subject to the same criminal penalties as a privately run child care home for failure to comply with the standards mandated by the act or rules promulgated pursuant thereto.

An examination of the child care organizations act discloses no significant distinctions between privately and governmentally operated child care facilities which would provide any plausible reason by giving private facilities the benefits of MCL 125.286(a)(2); MSA 5.2963(16a)(2) but not govern-mentally run facilities. In light of the ambiguity in the act’s definition of "licensee”, and in view of the fact that the important state policy stated in MCL 125.286a(2); MSA 5.2963(16a)(2) would be affirma*485tively hindered by not extending its benefits to governmentally run child care facilities, it is impossible for me to believe that the Legislature intended to preclude such facilities from taking advantage of § 16a of the Township Rural Zoning Act. In my opinion, the contrary conclusion, although arguably supportable by applying different rules of construction than I have, constitutes an absurd result. The Michigan Supreme Court has held that departure from literally applying the words of a statute is justified where such a literal construction would produce a result manifestly inconsistent with the policies sought to be effected by the statutory provisions in dispute. Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976), and cases cited therein. Furthermore, in this case, unlike Salas, it is outright impossible to literally apply the whole of the language of the various statutory provisions in question. My result requires us to give a more expansive definition to "licensee” than is justified by its dictionary meaning, but the majority’s result requires it to ignore words appearing in the statutory definition of "licensee”.

The majority states "that the term license is not ambiguous on its face”. It then applies the rule that specific words in a statute take their ordinary meaning and concludes by stating that no construction is permissible extending to state run child care facilities the benefits of MCL 125.286a(2); MSA 5.2963(16a)(2).

I believe this approach is faulty because, by enacting MCL 125.286a(l); MSA 5.2963(16a)(l), the Legislature specifically defined "state licensed residential facility” by reference to the child care organizations act. As noted above, the Legislature’s chosen definition of "licensee”, as used in *486the child care organizations act, is at odds with the plain meaning of license unless one ignores the language in that definition referring to "local or state government child care organization”. Consequently, contrary to the majority’s view, the statutes in issue here are not so clear that statutory construction is unneeded. Indeed, an ambiguity is obvious.

I also find the majority’s reliance on the new Adult Foster Care Facility Licensing Act, MCL 400.701 et seq.; MSA 16.610(51) et seq., unpersuasive. The majority’s underlying assumption that the Legislature’s intention in 1976, when it enacted the amendment to the Township Rural Zoning Act embodied in MCL 125.286a(2); MSA 5.2963(16a)(2), can be ascertained by reference to a different type of legislation passed in 1979, strikes me as a questionable proposition. In any case, the old Adult Foster Care Facility Licensing Act, MCL 331.681 et seq.; MSA 16.610(1) et seq., did not embody the same dichotomy between governmental and nongovernmental facilities evident in the child care organizations act. Instead, the old merely required licensure as a prerequisite to "a person, firm, corporation, association or organization” operating an adult foster care facility. This requirement certainly did not preclude the licensure of governmentally operated adult foster care homes. Indeed, a literal reading of the old statute would indicate that the licensure of each adult foster care home was a condition precedent to its lawful operation without regard to the organization running it. Thus, to the extent that the Adult Foster Care Facility Licensing Act can be said to have any bearing on legislative intent in enacting MCL 125.286a(2); MSA 5.2963(16a)(2), the new act has no more materiality to this problem than the old act.

*487I believe that the history of legislative changes made to MCL 722.111; MSA 25.358(11), the definitional section of the child care organizations act, is far more germane to resolution of this case than revisions to the Adult Foster Care Facility Licensing Act. By 1980 PA 232, a definition of "licensee” was first included in the act. This definition is the one currently found in MCL 722.111(g); MSA 25.358(11)(g). Other amendments to the child care organizations act were made contemporaneously with enactment of the definition of "licensee”. However, these other amendments were not of such a nature that they required an explicit definition of "licensee” to be understood. Although speculative, and of less importance to my holding than the rule of reason and the principle that every word used in a statute should be given effect, I believe it probable that somebody became concerned about the interplay between the child care organizations act and the Township Rural Zoning Act and believed that by enacting the definition of "licensee” currently embodied in MCL 722.111(g); MSA 25.358(ll)(b) this problem would be solved.

I would reverse. I urge the defendants to seek leave to appeal before the Michigan Supreme Court.

MCL 722.111 et seq.; MSA 25.358(11) et seq.

MCL 125.271 et seq.; MSA 5.2963(1) et seq.

Melia, supra, Deshler v Grigg, 90 Mich App 49, 53-54; 282 NW2d 237 (1979), lv den 407 Mich 875 (1979).