Koontz v. Ameritech Services, Inc

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                    Justices
                                                                Maura D. Cor rigan	



O pinion
                                                                                                  Michael F. Cavanagh
                                                                                                  Elizabeth A. Weaver
                                                                                                  Marilyn Kelly
                                                                                                  Clifford W. Taylor
                                                                                                  Robert P. Young, Jr.
                                                                                                  Stephen J. Markman
____________________________________________________________________________________________________________________________

                                                                                      FILED JUNE 12, 2002





                NANCY KOONTZ,

                        Plaintiff-Appellee,

                v	                                                                             No.           116366


                AMERITECH SERVICES, INC.,


                        Defendant-Appellant,


                and

                UNEMPLOYMENT AGENCY of the 

                MICHIGAN DEPARTMENT OF CONSUMER

                AND INDUSTRY SERVICES, formerly

                MICHIGAN EMPLOYMENT SECURITY 

                AGENCY,


                     Appellee.

                _____________________________________
                BEFORE THE ENTIRE BENCH (except MARKMAN, J.).


                CORRIGAN, C.J.


                        This case requires that we interpret a statute directing

                coordination of unemployment benefits with pension benefits.

                Plaintiff        received        a    lump-sum           pension        payment      under        an

                employer-funded            retirement         plan.              When   plaintiff            sought


                unemployment             compensation,              the          Unemployment                Agency1




                        1
                       The Unemployment Agency was formerly known as the

                Michigan Employment Security Commission.

coordinated her weekly benefits with her prorated weekly


amount of pension payments (i.e., the amount of pension

benefits plaintiff would have received weekly had she not


opted for a lump-sum payment). The ensuing reduction rendered


plaintiff ineligible to receive any unemployment benefits.

The Employment Security Board of Review and the circuit court


upheld the reduction.      The Court of Appeals reversed and held


that coordination was not required. 


     We hold that the governing statute, MCL 421.27(f)(1),


mandates coordination of plaintiff’s unemployment benefits


with her pension benefits.       We therefore reverse the judgment


of the Court of Appeals and reinstate the decision of the


Board of Review and the judgment of the circuit court.

           I.   Underlying Facts and Procedural History


     Plaintiff began working for Ameritech in its Traverse


City office in 1965. Thirty years later, Ameritech closed its

Traverse City office and offered to continue plaintiff’s


employment in another office.        She declined, electing instead


to retire.      Ameritech’s retirement incentive program entitled

plaintiff to a $1,052.95 monthly pension allowance, which


Ameritech fully funded. In lieu of monthly payments, however,


plaintiff elected to receive her pension in a lump-sum in the


amount of $185,711.55.        Plaintiff also chose to transfer the


lump-sum    directly   into    her   individual   retirement   account


(IRA).


     Plaintiff then applied for unemployment compensation.


Ameritech argued in response to plaintiff’s application that


MCL 421.27(f) of the Michigan Employment Security Act, MCL



                                     2

421.1     et    seq.,    allowed     coordination       of   plaintiff’s


unemployment benefits with the amount of pension payments

plaintiff would have received if she had elected the monthly


payment option.      The Unemployment Agency agreed and directed


coordination under MCL 421.27(f).          This coordination resulted

in a reduction in plaintiff’s unemployment benefits in the


amount of $243 weekly, rendering her ineligible to receive any


unemployment      benefits.2      Plaintiff    timely    protested     this


determination, but the Unemployment Agency upheld its decision


on redetermination. 


        Plaintiff thereafter appealed the redetermination.               A


referee reversed the decision of the Unemployment Agency on


the ground that neither MCL 421.27(f)(1) nor (5) required

coordination since plaintiff had transferred the pension funds


directly into her IRA and thus had not “received” the funds


within the meaning of the act.             The referee relied on the

Unemployment      Agency’s     Revised    Benefit    Interpretation     No.


20.641, which indicates that an employee who rolls a pension


amount over into an IRA does not incur immediate income tax

liability      because   the   Internal    Revenue    Service   does    not


consider the payment “received” for income tax purposes.


        Ameritech appealed the referee’s decision to the Michigan


Employment Security Board of Review, which reinstated the


Unemployment Agency’s determination in a split decision.                The


Board of Review ruled that the taxability of plaintiff’s



     2
      Because plaintiff’s pro-rata retirement benefits would

have been equal to or greater than her weekly unemployment

benefits, she was not eligible to receive unemployment

benefits chargeable to Ameritech. See MCL 421.27(f)(1)(a). 


                                    3

pension benefit did not affect the operation of MCL 421.27(f)


and that the lump-sum distribution was a “retirement benefit”

under the plain language of the act.                Accordingly, the board


concluded      that     coordination         was     required        under      MCL


421.27(f)(1)(a).

       One member of the Board of Review dissented, finding that


plaintiff did not receive a retirement benefit because the


lump-sum distribution had been rolled over into an IRA.                         The


dissenting member relied on Revised Benefit Interpretation No.


20.641 and the United States Department of Labor’s (USDOL)


Unemployment Insurance Program Letter No. 22-97.                         The USDOL


Letter No. 22-97 stated that pension amounts rolled over into


an IRA within sixty days of receipt are not gross income for

purposes      of   federal     income    taxation         and     thus    are   not


“received” for purposes of 26 USC 3304(a)(15)(A) of the


Federal Unemployment Tax Act (FUTA), 26 USC 3301 et seq.3                       The

dissenting member concluded that MCL 421.27(f) did not require


coordination of plaintiff’s weekly benefit amount.


       The    circuit   court    affirmed          the    Board    of     Review’s

decision.     The Court of Appeals then granted leave to appeal4

and reversed the circuit court order.                    239 Mich App 34; 607


NW2d    395   (1999).     It    held    that   another          subsection,     MCL


421.27(f)(5), governed and did not require coordination of


benefits. Alternatively, the court stated in dictum that even



       3

        The Unemployment Agency issued Revised Benefit

Interpretation No. 20.641 on November 29, 1995, in an apparent

attempt to comply with USDOL Letter No. 22-87.

       4

       Unpublished order, entered July 7, 1998 (Docket No.

208176).


                                        4

if MCL 421.27(f)(1) applied, coordination was not required


because 1) plaintiff had not received a “retirement benefit”

within the meaning of MCL 421.27(f)(4), and 2) the phrase


“receive or will receive” in MCL 421.27(f)(1) does not include


the direct rollover of a pension fund to an IRA. 

                     II. Standard of Review


     This case requires us to ascertain the meaning and proper


application of MCL 421.27. Issues of statutory interpretation


are questions of law that we review de novo.   Oade v Jackson


Nat’l Life Ins Co, 465 Mich 244, 250; 632 NW2d 126 (2001);


Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574


(1999).


                     III. Relevant Statutes

     MCL 421.27(f)(1) has existed in essentially the same form


since 1954 PA 197.    It states:


          [N]otwithstanding any inconsistent provisions

     of this act, the weekly benefit rate of each

     individual who is receiving or will receive a

     “retirement   benefit,”   as    defined   in   [MCL

     421.27(f)(4)], shall be adjusted as provided in

     subparagraphs (a) . . . . However, an individual's

     extended benefit account and an individual's weekly

     extended benefit rate under [MCL 421.64] shall be

     established without reduction under this subsection

     unless [MCL 421.27(f)(5)] is in effect . . . .


          (a) If and to the extent that unemployment

     benefits payable under this act would be chargeable

     to an employer who has contributed to the financing

     of a retirement plan under which the claimant is

     receiving or will receive a retirement benefit

     yielding a pro rata weekly amount equal to or

     larger than the claimant's weekly benefit rate as

     otherwise established under this act, the claimant

     shall not receive unemployment benefits that would

     be chargeable to the employer under this act.


MCL 421.27(f)(1) thus requires an offset in unemployment


compensation for retirement benefits if the employer charged



                               5

with unemployment benefits funded the retirement plan.                  This


type of reduction is known as “narrow coordination.”

       Before 1980, federal law did not address coordination of


unemployment and retirement benefits. In March 1980, Congress


amended     26   USC   3304(a)(15)   of   the   FUTA     to   require    the

coordination of unemployment benefits with employer-funded


retirement benefits, regardless of whether the employer who


had funded the retirement benefits was the same employer whose


account would be charged for the unemployment benefits.                 This


type   of   coordination     is   known   as    “broad    coordination.”


Section 3304, particularly subsection (a)(15), of the FUTA


requires the states to conform to federal policy regarding


coordination of unemployment benefits to insure eligibility

for federal funds or tax credits.               See Gormley v General


Motors Corp, 125 Mich App 781, 785-786; 336 NW2d 873 (1983).


In response to the federal amendment, the Michigan Legislature

promptly adopted broad coordination to the extent required by


federal law.      MCL 421.27(f)(5) states:


            Notwithstanding any other provision of this

       subsection, for any week that begins after March 31,

       1980, and with respect to which an individual is

       receiving a governmental or other pension and

       claiming unemployment compensation, the weekly

       benefit amount payable to the individual for those

       weeks shall be reduced, but not below zero, by the

       entire prorated weekly amount of any governmental or

       other pension, retirement or retired pay, annuity,

       or any other similar payment that is based on any

       previous work of the individual.     This reduction

       shall be made only if it is required as a condition

       for full tax credit against the tax imposed by the

       federal unemployment tax act, chapter 23 of subtitle

       C of the internal revenue code of 1986, 26 USC 3301

       to 3311.

       The federal mandate for broad coordination was short­
lived. In September 1980, Congress amended 26 USC 3304(a)(15)


                                     6

to its present form, which requires only narrow coordination,


i.e.,     that   coordination       specified   in   MCL   421.27(f)(1).

Despite the federal amendment, the Michigan Legislature has


never amended MCL 421.27(f)(5).            MCL 421.27 thus retains both


broad and narrow coordination provisions.            We now address the

interplay of those provisions. 


           IV.   Principles of Statutory Interpretation


        When interpreting statutory language, our obligation is


to ascertain the legislative intent that may reasonably be


inferred from the words expressed in the statute.               Wickens v


Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d 686


(2001).     When the Legislature has unambiguously conveyed its


intent in a statute, the statute speaks for itself, and

judicial construction is not permitted.              Huggett v Dep’t of


Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001);


Donajkowski, supra at 248.            Because the proper role of the

judiciary is to interpret and not write the law, courts simply


lack authority to venture beyond the unambiguous text of a


statute. 

        Courts must give effect to every word, phrase, and clause


in a statute, and must avoid an interpretation that would


render    any    part    of   the   statute   surplusage   or   nugatory.


Wickens, supra at 60.          Further, we give undefined statutory


terms their plain and ordinary meanings.             Donajkowski, supra


at 248-249; Oakland Co Road Comm’rs v Michigan Property &


Casualty Guaranty Ass’n, 456 Mich 590, 604; 575 NW2d 751


(1998).      In those situations, we may consult dictionary


definitions.      Id.



                                      7

                         V. Analysis


             A. Interpretation of MCL 421.27(f)

     The Court of Appeals determined that MCL 421.27(f)(5)


controlled over MCL 421.27(f)(1):


          We conclude that subdivision 27(f)(5) is

     controlling with regard to the coordination of

     plaintiff’s retirement benefits. Its purpose was to

     conform with the federal government’s goal of

     maintaining certain uniformity among the state

     programs regarding the coordination requirements for

     unemployment compensation, which purpose would be

     defeated were Michigan to default to its own

     interpretations for coordination under its previous

     statutory provisions and, in this case, circumvent

     the clear result under subdivision 27(f)(5) that

     coordination   of   plaintiff’s  benefits   is   not

     required. 


          Moreover, the express statutory language

     mandates a conclusion that subdivision 27(f)(5)

     controls over subdivision 27(f)(1).      Subdivision

     f(5)   was  enacted   after   f(1)   and   provides:

     “Notwithstanding any other provision of this

     subsection . . . .”    [Emphasis in original.]    To

     apply   subdivision   27(f)(1)    independently   of

     subdivision 27(f)(5) and deny plaintiff unemployment

     benefits is inconsistent with the result under

     federal law. Such an interpretation also creates an

     inconsistency within the statute, contrary to the

     rules of statutory construction.      In construing

     statutes, seeming inconsistencies in the various

     provisions should be reconciled if possible.

     [Citation omitted.]

Accordingly, the Court of Appeals held that MCL 421.27(f)(5)


exempted plaintiff’s benefits from coordination. 


     The Court of Appeals failed to give effect to every word


and phrase of MCL 421.27(f). While the court acknowledged the


phrase,   “Notwithstanding   any   other   provision   of   this


subsection” in MCL 421.27(f)(5), it failed to give effect to


similar    language    in    MCL     421.27(f)(1),     stating,


“notwithstanding any inconsistent provisions of this act.” In


addition, in finding that MCL 421.27(f)(5) controls over MCL



                              8

421.27(f)(1), the Court rendered nugatory MCL 421.27(f)(1),


contrary to established rules of interpretation.

       We believe that the language of MCL 421.27(f) is clear


and unambiguous and must therefore be enforced as written.


Huggett,    supra   at   717;   Donajkowski,   supra    at    248.    MCL

421.27(f)(1) provides, in pertinent part: 


            [N]otwithstanding any inconsistent provisions

       of this act, the weekly benefit rate of each

       individual who is receiving or will receive a

       “retirement   benefit,”   as   defined   in   [MCL

       421.27(f)(4)], shall be adjusted as provided in

       subparagraph (a) . . . .


            (a) If and to the extent that unemployment

       benefits payable under this act would be chargeable

       to an employer who has contributed to the financing

       of a retirement plan under which the claimant is

       receiving or will receive a retirement benefit

       yielding a pro rata weekly amount equal to or

       larger than the claimant's weekly benefit rate as

       otherwise established under this act, the claimant

       shall not receive unemployment benefits that would

       be chargeable to the employer under this act.

       [Emphasis added.]


This    text   requires     coordination    where      the    claimant’s


unemployment benefits are chargeable to the employer who

contributed to the financing of the claimant’s retirement


benefits.       Thus,      “narrow    coordination”      is     required


“notwithstanding     any   inconsistent    provisions    of    this   act


. . . .”


       MCL 421.27(f)(5), on the other hand, requires “broad


coordination” where necessary to conform to federal law:


            Notwithstanding any other provision of this

       subsection, for any week that begins after March 31,

       1980, and with respect to which an individual is

       receiving a governmental or other pension and

       claiming unemployment compensation, the weekly

       benefit amount payable to the individual for those

       weeks shall be reduced, but not below zero, by the

       entire prorated weekly amount of any governmental or

       other pension, retirement or retired pay, annuity,


                                     9

     or any other similar payment that is based on any

     previous work of the individual.     This reduction

     shall be made only if it is required as a condition

     for full tax credit against the tax imposed by the

     federal unemployment tax act, chapter 23 of subtitle

     C of the internal revenue code of 1986, 26 USC 3301

     to 3311. [Emphasis added.]


This provision broadens the coordination required in MCL

421.27(f)(1) by compelling a reduction not only with regard to


pension funds that the chargeable employer contributes, but


also with regard to pension funds “based on any previous


work,”     regardless      of    whether    the   chargeable        employer


contributed the funds.          MCL 421.27(f)(5) requires such “broad


coordination” only when necessary to conform to federal law.


     Thus, contrary to the Court of Appeals analysis, MCL


421.27(f)(1)     and    (5)     are   not   inconsistent,     but    can   be

harmonized.        While        MCL   421.27(f)(1)     always       requires


coordination of pension benefits that the chargeable employer


contributed, MCL 421.27(f)(5) may also require coordination of

pension benefits on the basis of the claimant’s previous work


if such broad coordination is necessary to conform to federal


law.

        Our application of the plain language of these provisions

does not render MCL 421.27(f)(5) nugatory.             If Congress again


chooses     to   require      broad    coordination,    the     additional


reduction prescribed in subsection 27(f)(5) will be triggered.


That federal law does not presently require the reduction does


not render MCL 421.27(f)(5) nugatory and does not compel the


Michigan Legislature to amend the statute.


                  B. The Meaning of “Liquidation”





                                      10

      Because   MCL    421.27(f)(5)      does      not    apply    here,5   the


question     remains     whether       MCL      421.27(f)(1)         required

coordination of plaintiff’s benefits.               The Court of Appeals


stated in dictum that even if MCL 421.27(f)(1) governed, it


did not require an offset because plaintiff did not receive a

“retirement     benefit”        within       the         meaning     of     MCL


421.27(f)(4)(a).       That subdivision provides:


           (4)(a) As used in this subdivision, “retirement

      benefit” mean a benefit, annuity, or pension of any

      type . . . that is:


           (i) Provided as an incident of employment under

      an   established   retirement   plan,   policy,   or

      agreement, including federal social security if

      subdivision (5) is in effect.

           (ii) Payable to an individual because the

      individual has qualified on the basis of attained

      age, length of service, or disability, whether or

      not the individual retired or was retired from

      employment.   Amounts paid to individuals in the

      course of liquidation of a private pension or

      retirement fund because of termination of the

      business or of a plant or department of the business

      of the employer involved shall not be considered to

      be retirement benefits. [Emphasis added.]


The Court of Appeals determined that plaintiff’s pension was


not   a    retirement    benefit       within      the     meaning    of    MCL

421.27(f)(4)(a)       because    the     fund      was     liquidated       upon


plaintiff’s termination when Ameritech closed its Traverse


City office.    This factual conclusion was erroneous.


      Although the Ameritech Traverse City office was closed,



      5
       Even if MCL 421.27(f)(5) applied, it would not change

the result. Plaintiff did not receive extended benefits, but,

rather, Ameritech contributed to all the pension benefits paid

to plaintiff. Plaintiff did not receive benefits from any

employer other than Ameritech, the chargeable employer. Thus,

even if federal law mandated broad coordination under MCL

421.27(f)(5), the facts of this case implicated only the

narrow coordination already required by MCL 421.27(f)(1).


                                   11

the   record   does    not   reflect     that      the   pension   fund   was


liquidated.    Random House Webster’s College Dictionary (2000)

defines “liquidate” as “to settle or pay (a debt),” “to reduce


(accounts) to order,” “to dissolve (a business or estate) by


apportioning    the    assets     to   offset      the   liabilities,”    “to

convert (inventory, securities, or other assets) into cash,”


“to get rid of, esp. by killing,” “to break up or do away


with,”   and   “to    liquidate    debts     or    accounts.”      The    more


pertinent of these definitions contemplate the elimination of


an entire entity or the abolition of all assets or accounts


within an entity.        As such, liquidation would involve the


Ameritech pension fund distributing all its assets.                        The


distribution of a single employee’s vested interest is not a

liquidation of the pension fund. In addition, plaintiff could


have elected to accept her pension benefits as a monthly


annuity, which clearly refutes the Court of Appeals conclusion

that the fund had been liquidated.


      Our dissenting colleague maintains that we misconstrue


the meaning of MCL 421.27(f)(4)(a) by failing to consider the

entire sentence in which “liquidation” appears.                 She attempts


to generate an ambiguity in the phrase “liquidation of a


private pension or retirement fund” by asserting that the


phrase could refer either to an individual’s personal account


or fund or to the collective pension fund.                   We reject the


dissent’s view.


      The meaning of the phrase in MCL 421.27(f)(4)(a)(ii)


hinges on the word “liquidation.”                 As discussed, the plain


meaning of that term requires distribution of all assets held



                                       12

in the pension fund for all employees.              The dissent contends


that the term “liquidate” has many definitions, some of which

may be interpreted to apply to a sole pension account, such as


that    belonging     to    plaintiff.        A   word    is    not    rendered


ambiguous, however, merely because a dictionary defines it in

a variety of ways.         Upjohn Co v New Hampshire Ins Co, 438 Mich


197, 208-209, n 8; 476 NW2d 392 (1991).                Rather, the doctrine


of noscitur a sociis requires that the term “liquidation” be


viewed in light of the words surrounding it.                   Herald Co v Bay


City,    463   Mich   111,     130,   n     10;   614    NW2d    873    (2000).


“Contextual understanding of statutes is generally grounded in


the doctrine of noscitur a sociis: ‘[i]t is known from its


associates,’ see Black’s Law Dictionary (6th ed), p 1060.

This doctrine stands for the principle that a word or phrase

is given meaning by its context or setting.”                Brown v Genesee


Co Bd of Comm’rs (After Remand), 464 Mich 430, 437; 628 NW2d

471 (2001), quoting Tyler v Livonia Schs, 459 Mich 382, 390­

391; 590 NW2d 560 (1999).


        In the context of the statute, the term “liquidation”

pertains to multiple accounts rather than to an individual


account. The statute exempts from the category of “retirement


benefits” those amounts “paid to individuals in the course of


liquidation     of    a    private    pension     or     retirement      fund.”


Therefore, the text contemplates that liquidation pertains to


multiple accounts and not merely the single account of an


individual pensioner. In addition, the liquidation must occur


because of “termination of the business or of a plant or


department of the business.” Such a termination would involve



                                      13

all employees within the business, plant, or department, and


not merely a single employee.     Therefore, in accordance with

the doctrine of noscitur a sociis, the phrase “liquidation of


a private pension or retirement fund” is not ambiguous; the


language clearly refers to the distribution of all assets

within the fund.   Moreover, the dissent does not explain how


the fund was liquidated where, as discussed above, plaintiff


could have chosen to collect her pension benefits as a monthly


annuity.


     Further, the dissent asserts that MCL 421.27(f)(4)(a) is


a remedial statute that we should construe liberally in favor


of plaintiff. We do not apply preferential rules of statutory


interpretation,    however,    without    first   discovering   an

ambiguity and attempting to discern the legislative intent


underlying the ambiguous words.       Crowe v Detroit, 465 Mich 1,


13; 631 NW2d 293 (2001).      Only if that inquiry is fruitless,

or produces no clear demonstration of intent, do we resort to


a preferential or “dice-loading” rule.6      Because no ambiguity


exists, the remedial rule of preference does not apply.         Id.

     The dissent also asserts that our interpretation of the


statute produces “unconscionable results.” It is not the role


of the judiciary, however, to second-guess the wisdom of a


legislative policy choice.      Our constitutional obligation is


to interpret, not to rewrite, the law.            The Legislature


apparently determined that the same result should obtain


regardless of whether an employee opts for a monthly annuity



     6

       See also Scalia, A Matter of Interpretation: Federal

Courts and the Law (Princeton, NJ, 1997) pp 27-29.


                                14

or for a lump-sum payment.     Here, if plaintiff had elected a


monthly annuity in lieu of the lump-sum payment, no question

would exist that she would have been ineligible to receive


unemployment benefits.


      Moreover, plaintiff chose to accept her pension benefits

instead of relocating to another Ameritech office.       Ameritech


had   offered   plaintiff   the    opportunity   to   continue   her


employment in another location, but she declined to do so.


The payout followed plaintiff’s decision to retire rather than

relocate.   While the dissent contends that plaintiff had no


choice but to accept her pension benefits, the record does not


support this assertion.     Accordingly, the condition set forth


in MCL 421.27(f)(4)(ii), providing an exception to the term

“retirement benefit,” does not apply in this case.


      Thus, whether Ameritech’s payment to plaintiff was a


“retirement benefit” depends on whether it was “a benefit,

annuity, or pension of any type” payable to her “because [she]


has qualified on the basis of attained age [or] length of


service . . . .”     In defining a “retirement benefit,” the

Legislature has used words of common and ordinary meaning, and


we apply them accordingly.        Donajkowski, supra at 248-249;


Oakland Co Rd Comm’rs, supra at 604.       It is undisputed that


plaintiff received a pension benefit on the basis of her age


and years of service.        Thus, she received a “retirement


benefit” as contemplated in MCL 421.27(f)(4)(a). 


         C. The Meaning of “Receive or Will Receive”

      The Court of Appeals also stated, in dictum, that even if


plaintiff’s distribution were a retirement benefit, it was



                                  15

exempt from coordination because “the Legislature did not


intend the terms ‘receive or will receive’ under § 27(f)(1) to

include the direct rollover of a pension fund to an IRA


. . . .”       The Court stated:


            This construction of the statute is the most

       reasonable   and   comports    with   the   benefit

       interpretations of both the UA and the USDOL. MESC

       Revised Benefit Interpretation No. 20.641 (November

       29, 1995); USDOL Unemployment Insurance Program

       Letter No. 22-87, Change 1 (June 19, 1995).      In

       reaching our conclusion, we are mindful that the

       role of the judiciary is not to engage in judicial

       legislation, but rather to determine the way chosen

       by the Legislature. [Citation omitted.] We decline

       to interpret the statute to incorporate any change

       that overrides requirements clearly adopted by the

       Legislature. [239 Mich App 47.]


       While this issue is one of first impression in the


context of unemployment compensation, it has been addressed in

the    somewhat      analogous    context   of    worker’s      compensation.


White v McLouth Steel Products, decided sub nom Corbett v

Plymouth Twp, 453 Mich 522; 556 NW2d 478 (1996).7                     In White,

this       Court   construed   MCL   418.354(1)(d),        of   the    Worker’s


Disability         Compensation   Act,   MCL     418.101   et    seq.,    which


directs that worker’s compensation benefits be coordinated

with “[t]he after-tax amount of the pension or retirement


payments received or being received . . . .”                The employee in


White rolled his lump-sum pension distribution into an                     IRA .


The question was whether the nontaxable nature of the rollover


transfer precluded coordination of the retirement payments


with the worker’s compensation benefits.              This Court ruled in


       7
       See, generally, Drouillard v Stroh Brewery Co, 449 Mich

293, 304-305; 536 NW2d 530 (1995) (holding that the employer

could coordinate a lump-sum pension distribution with worker’s

compensation benefits where the employee had been “forced” to

accept the pension distribution). 


                                      16

favor of the employee.             It rejected as “literalism” the


employer’s    contention      that    the    employee       “received”     the

transferred    amount.        This    Court       also    stated   that    its


interpretation    was    consistent        with    the     language   of   MCL


418.354(1)(d), limiting coordination to the after-tax amount

of the pension:


           By reason of the tax-free aspect of a rollover

      into an IRA , there is no taxable event and, hence,

      no tax or “after-tax amount” that is “received or

      being received.” [Id. at 547.]


      Three justices dissented in White.                 They opined:


           The [majority] opinion dismisses the statute’s

      language by labeling as “literalism” defendant

      McLouth Steel Products’ argument that under the

      statute White has received his pension payment.

      Ante at 544. [T]he better phrase would be plain

      meaning. Subsection 354(1)(d) provides that weekly

      worker’s compensation benefits may be reduced by

      the “after-tax amount of the pension or retirement

      payments received” by the employee and does not

      condition the coordination of pension benefits on

      whether the employee actually begins to use these

      funds or invests them in a plan in which he will

      only later receive payments. . . .


           The   majority   attempts   to   justify   its

      interpretation . . . by noting the statute’s use of

      the “after-tax amount,” but fails to note that [MCL

      418.354(13)] defines “after-tax amount” as the

      amount remaining after subtracting the estimated

      tax the employee would pay on the benefit, not the

      actual tax the employee incurred . . . . [Id. at

      562-563 (emphasis in original).[8]


      MCL    421.27(f)(1)     is     the    unemployment        compensation


counterpart of MCL 418.354(1)(d), but it lacks the “after-tax


amount” language on which the White majority relied in part.


The   question   here    is    whether      plaintiff        “received”    the



      8

       More precisely, MCL 418.354(13) defines “after-tax

amount” as the gross amount remaining after subtracting the

amount “which would have been paid, if any, under . . . state

income tax and federal income tax . . . .” [Emphasis added.]


                                     17

transferred   amounts.         Random     House    Webster’s    College


Dictionary (2000) defines “receive” as “to take into one’s

possession,” “to have (something) bestowed, conferred, etc.,”


“to hold, bear, or contain,” and “to take, get, accept, or


meet with something.”         In light of these definitions, we

conclude   that   plaintiff    received    her    retirement   benefits


within the meaning of MCL 421.27(f)(1), notwithstanding the


fact that Ameritech transferred the funds directly into her


IRA. We disagree with our dissenting colleague that plaintiff


did not take the pension funds into her possession within the


meaning of the dictionary definition of “receive.”             The funds


were transferred at plaintiff’s direction.            She is able to


withdraw the funds at any time and use them as she sees fit.

Ameritech clearly conferred the funds upon plaintiff, and


plaintiff accepted those funds by directing them into an


account of her choice.        Accordingly, it is inescapable that

plaintiff received the funds.      Because the dissenting opinion


in White is better reasoned, following that approach, we


conclude that plaintiff “received” the distribution at issue

within the meaning of MCL 421.27(f)(1).9


     9
      We overrule White to the extent that it is inconsistent

with our present holding. The White majority also relied in

part on the statutory language “after-tax amount” in MCL

418.354(1)(d) in support of its decision. We do not decide

whether that aspect of White was decided correctly because it

is irrelevant to our determination in this case. 


     Our concurring colleague asserts that overruling White in

part is unnecessary because, unlike the statute in White, the

statute before us does not contain the “after-tax amount”

language. He fails to acknowledge, however, that in addition

to the “after-tax amount” language, the White majority relied

in part on an erroneous definition of “receive,” conditioned

on the taxable nature of the funds in question.            The

concurring opinion, therefore, overlooks part of the reasoning


                                  18

     Like, the Court of Appeals, the dissent would erroneously


elevate a construction from an extratextual source above the

unambiguous language of the statute itself. As we have stated


repeatedly, courts may not look beyond the clear text of a


statute to discover an unexpressed legislative intent.                            Sun

Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119


(1999).    Although this Court generally accords due deference


to   an    administrative        agency      charged        with     executing        a


particular statute, we grant no deference here because the


plain     meaning    of    the      statute        controls.          “An    agency


interpretation       cannot      overcome      the    plain        meaning       of   a


statute.”       Consumers Power Co v Public Service Comm, 460 Mich


148, 157, n 8; 596 NW2d 126 (1999).                  The plain and ordinary

meaning    of    “receive”    provides        no    basis    to     differentiate


between    funds    that   are      taxable    and    those        that    are    not.


Therefore, MCL 421.27(f)(1) requires coordination whether or

not the funds are subject to taxation when plaintiff received


them by directing their deposit into her IRA account.


                              VI.    Conclusion

        We conclude that MCL 421.27(f)(1) required coordination


of   plaintiff’s      unemployment         benefits         with     her     pension


benefits.       Plaintiff received a “retirement benefit” within


the meaning of MCL 421.27(f)(1).                   That subsection required


coordination,       whether   or     not     the    funds    were     subject         to


taxation at the time of their receipt.                         Accordingly, we


reverse the judgment of the Court of Appeals and reinstate the


decision of the Board of Review and the judgment of the



upon which the majority in White based its decision.


                                       19

circuit court.

     WEAVER , TAYLOR , and YOUNG , JJ., concurred with CORRIGAN , C.J.





                                 20

                    S T A T E      O F    M I C H I G A N


                                 SUPREME COURT




NANCY KOONTZ,


       Plaintiff-Appellee,


v                                                                  No. 116366


AMERITECH SERVICES, INC.,


       Defendant-Appellant,


and

UNEMPLOYMENT AGENCY of the

MICHIGAN DEPARTMENT OF CONSUMER

AND INDUSTRY SERVICES, formerly

MICHIGAN EMPLOYMENT SECURITY 

AGENCY,

     Appellee.

________________________________
CAVANAGH, J. (concurring).

       I   concur    with    the    result    in     this   case    that         MCL


421.27(f)(1) required coordination of plaintiff’s unemployment

benefits    with     her    pension      benefits.      However,        I    write

separately    because       in    reaching    this    result,      it       is   not


necessary for the majority to adopt the dissent’s approach


from White v McLouth Steel Products, decided sub nom Corbett


v Plymouth Twp, 453 Mich 522; 556 NW2d 478 (1996), and to


overrule White to the extent that it is inconsistent with


today’s holding.            In    White,     this Court construed MCL


418.354(1)(d) of the Worker’s Disability Compensation Act

(WDCA), which provided that worker’s compensation benefits be


coordinated with “[t]he after-tax amount of the pension or


retirement payments received or being received . . . .”

(Emphasis added.)    The White Court stated:


          The construction that we adopt is consistent

     with the language of the statute, which provides

     for an offset “of the after-tax amount of the

     pension or retirement payments received or being

     received by the employee . . . .” (Emphasis added.)

     By reason of the tax-free aspect of a rollover into

     an IRA, there is no taxable event and, hence, no

     tax or “after-tax amount” that is “received or

     being received.” [White, supra at 547.]


     The   instant   case   involves   an   unemployment   benefits


statute that is similar to the worker’s compensation statute


in White, but does not contain the “after-tax” language.

Although the remaining language in these statutes is similar,

it is not identical.   The two statutes are clearly different;


they contain materially different language and arguably serve

different purposes.

     Because of the differences between these statutes, the


majority does not need to address White.          The White Court

clearly stated that its holding was based on the “after-tax”

language in the WDCA statute it was construing. 





                                2

                   S T A T E    O F   M I C H I G A N


                               SUPREME COURT





NANCY KOONTZ,


       Plaintiff-Appellee,


v                                                          No. 116366


AMERITECH SERVICES, INC.,

       Defendant-Appellant,


and

UNEMPLOYMENT AGENCY of the

MICHIGAN DEPARTMENT OF CONSUMER

AND INDUSTRY SERVICES, formerly

MICHIGAN EMPLOYMENT SECURITY

AGENCY,

          Appellee.

___________________________________
KELLY, J. (dissenting).

       I respectfully disagree with the majority's conclusion


that plaintiff's unemployment compensation benefits should be


eliminated because she has received retirement benefits as

defined by the Michigan Employment Security Act (MESA).           MCL


421.1 et seq.        The majority reads the relevant statutory


language as unambiguous, despite strong indications to the


contrary.    It fails to consider the entirety of the sentence


in   which   the    word   "liquidation"   appears   and   disregards


interpretive letters that define "receive."          In so doing, the

majority misconstrues the meaning of MCL 421.27(f)(4)(a).


      The Court of Appeals advanced the correct interpretation.


I would affirm its holding that plaintiff did not receive a


"retirement benefit" within the meaning of the act and that


her   unemployment       compensation     benefits   should       not   be


eliminated as a consequence. 


                   I.     STATUTORY CONSTRUCTION


      When   construing    a   statute,    our   primary   goal    is   to


ascertain and give effect to the intent of the Legislature in


writing it.     Turner v Auto Club Ins Ass'n, 448 Mich 22, 27;


528 NW2d 681 (1995). While judicial interpretation usually is

not permitted where statutory language is clear, a literal

construction must yield when it produces absurd and unjust


results.     See Salas v Clements, 399 Mich 103, 109; 247 NW2d

889 (1976).    Judicial interpretation is also appropriate when

reasonable minds can differ regarding the meaning of the


language.     Adrian Sch Dist v Michigan Pub Sch Emp Retirement

System, 458 Mich 326, 332; 582 NW2d 767 (1998).            If judicial

interpretation is necessary, legislative intent is determined


by giving the statutory language a construction that is both

reasonable and that best accomplishes the purpose of the


statute.     Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456


Mich 511, 515; 573 NW2d 611 (1998).


                    A.    THE TERM "LIQUIDATION"


      The MESA allows unemployment benefits payable under it to


be reduced or eliminated where a claimant is receiving a


"retirement benefit." MCL 421.27(f)(1). It defines that term

as "a benefit, annuity, or pension of any type . . . payable


                                   2

[when] . . . the individual was retired from employment." MCL


421.27(f)(4)(a)(ii).           But the act expressly excludes as a


retirement benefit any amounts paid to individuals "in the


course of liquidation of a private pension or retirement fund


because of termination of the business or of a plant or


department of the business of the employer involved . . . ."

   1

Id.


        In this case, plaintiff lost her job with defendant


because defendant closed the facility where she worked.              The


question is whether her retirement funds fall within the


statutory definition of "retirement benefit" or within the

exception. 

        The expression "liquidation of a private pension or


retirement        fund"   in    §   27(f)(4)(a)(ii)   could   mean     a

distribution of all pension monies that an employer holds for




        1

             MCL 421.27(f)(4)(a) provides:


             As used in this subdivision, "retirement

        benefit" means a benefit, annuity, or pension of

        any type or that part thereof that is described in

        subparagraph (b) that is:

             (i) Provided as an incident of employment

        under an established retirement plan, policy, or

        agreement, including federal social security if

        subdivision (5) is in effect.


             (ii) Payable to an individual because the

        individual has qualified on the basis of attained

        age, length of service, or disability, whether or

        not the individual retired or was retired from

        employment. Amounts paid to individuals in the

        course of liquidation of a private pension or

        retirement fund because of termination of the

        business or of a plant or department of the

        business of the employer involved shall not be

        considered to be retirement benefits.

                                     3

all its employees.       Defendant here maintains that it did not


liquidate its entire pension fund monies when it closed the


facility where plaintiff worked and that the fund continues to


exist.        Under   this   interpretation   and   in   this   factual


situation, plaintiff's pension distribution would constitute


retirement benefits and she could not be paid unemployment


benefits. 


      On the other hand, the clause "liquidation of a private


pension or retirement fund" could mean a distribution of all


pension monies that an employer holds for one or more but not


all of its employees.2         As noted by the majority, the word

"liquidate" has many definitions, including "to settle or pay

(a debt)" and "to convert (inventory, securities, or other


assets) into cash."3 Applying that definition here, defendant

"liquidated" plaintiff's retirement fund when it distributed

the entire contents and closed the account, settling its debt


to plaintiff and converting her pension into cash. Hence, the

distribution would not constitute retirement benefits and

plaintiff could draw unemployment benefits.

      The majority offers no persuasive reasoning to support

its   conclusion      that   the   "more   pertinent"    definition   of


"liquidate" is that contemplating the elimination of all


corporate pension assets.          The mere fact that it prefers this




      2

       It is not clear from the record whether defendant

distributed retirement funds to all employees in the facility

that it closed. It is known that five other employees were

affected in the same way as plaintiff.

      3

           See Random House Webster's College Dictionary (2001).

                                     4

to a definition more favorable to plaintiff has no bearing on


what the Legislature intended "liquidate" to mean. The varied


definitions of the word leave room for reasonable minds to


differ.     It is inescapable that the statutory language is


ambiguous.


      The majority's interpretation, that "liquidation" means


a   distribution     of   all   pension      monies    held    for     all    its


employees, produces unconscionable results.                 For example, in


this case, Ameritech would never "liquidate" all its pension


fund monies by shutting down one or some of its facilities. 


Hence, no employee in plaintiff's situation could ever collect

unemployment benefits.          As an extreme example, if defendant

discharged all its employees, it could distribute all but one


dollar of the funds in the pension fund.              Then, the fund would

not have been liquidated under the majority's reading because

all the assets would not have been distributed.                   In so doing,


defendant    could    reduce     or   eliminate       all   its     employees'

unemployment    benefits.         The      Legislature      could    not     have

intended the result in either example.


      The practical implications of the majority's reading of

§ 27(f)(4)(a)(ii) are enormously detrimental to employees like


plaintiff.     During plaintiff's hearing before the Michigan


Employment     Security    Board      of    Review,    defendant's         human


resources manager testified that there is a single common


trust fund for pension monies to which both defendant and


Michigan Bell contribute.              Absent closure of the entire


corporation and all its pension funds, whenever defendant

shuts   down   one    facility,       it   will   always      escape    paying


                                      5

unemployment benefits to the employees who worked there. 


     The       majority   distorts    the   facts   of   this   case   by


portraying plaintiff's acceptance of her pension funds as a


choice.     Defendant offered plaintiff two other jobs in its


corporation.       However, both were located approximately two


hours from her residence.             When plaintiff declined them


because     the    commute    would    be   unreasonable,       defendant


distributed her retirement funds. She did not have the option


to leave them in defendant's trust fund.            She was obliged to


have them rolled into an IRA or paid to her in a monthly


annuity.4       It is in light of these facts that defendant

believes the funds were not liquidated within the meaning of

MCL 421.27(f)(4)(a)(ii).


     My construction of § 27(f)(4)(a)(ii) is in keeping with

the fact that the MESA is a remedial statute.               As such, by

principle, it should be liberally construed to afford benefits


to a displaced employee.         Empire Iron Mining Partnership v

Orhanen, 455 Mich 410, 415-416; 565 NW2d 844 (1997).                   My

construction also furthers the purpose of the act, which is

"to lighten the burden of economic insecurity on those who

become unemployed through no fault of their own." Id. at 417.


          B.    THE PHRASE "IS RECEIVING OR WILL RECEIVE"


     I also disagree with the majority's rejection of the


Court of Appeals finding that, within the meaning of MCL



     4

       Defendant did not at any point during the trial and

appellate proceeding contest this. Accordingly, there is no

reason for this Court to question the accuracy of plaintiff's

assertion that she was required to see her retirement funds

distributed. The record supports the claim. 

                                      6

421.27(f)(1), the funds were not "received."              Once again, the


majority brushes aside reasonable interpretations other than


its own and characterizes a word as unambiguous. 


     The facts of this case show that plaintiff did not take


the pension funds into her possession within the dictionary


definition of "receive."       Instead, defendant transferred the


funds directly into an individual retirement account in her


name. 


     The Court of Appeals decision interpreted "receive" by


relying in part on interpretive letters issued by the United


States    Department   of     Labor     (USDOL)5    and       the    Michigan

Employment Security Commission.6         Both conclude that, when an

employer transfers an employee's retirement funds into an


individual retirement account, the employee does not receive

them for purposes of the relevant unemployment compensation

laws. 


     The majority ignores these letters, choosing instead to

construct    a   definition   of   "receive"       on   the    basis    of   a

dissenting opinion7 and dictionary definitions.                 However, it


is   a    long-established     principle     of     law       that    "'[t]he



     5
       USDOL Unemployment Insurance Program Letter No. 22-87,

Change 1 (June 19, 1995).

     6
      Michigan Employment Security Commission Revised Benefit

Interpretation No. 20.641 (November 29, 1995).

     7

       The majority adopts the reasoning from the dissenting

opinion in White v McLouth Steel Products, decided sub nom

Corbett v Plymouth Twp, 453 Mich 522; 556 NW2d 478 (1996). In

so doing, it reverses that part of White that is inconsistent

with its holding. There is no reason to reach White. That

case is easily distinguishable on the basis of the statutory

provisions involved. 

                                   7

construction given to a statute by those charged with the duty


of executing it is always entitled to the most respectful


consideration and ought not to be overruled without cogent


reasons.'"     Oakland Schs Bd of Ed v Superintendent of Pub


Inst, 401 Mich 37, 41; 257 NW2d 73 (1977), quoting United


States v Moore, 95 US (5 Otto) 760; 24 L Ed 588 (1877). 


     The majority offers no cogent reason to deviate from the


administrative agencies' interpretations, which provide a


reasonable construction of the statutory language consistent


with the purpose and the policy of the MESA.       This Court


should accord that interpretation due deference and hold that

plaintiff did not receive a retirement benefit within the

meaning of § 27(f) of the MESA.


                      II.   PUBLIC POLICY

     The controversy here regarding the correct interpretation

of the statutory definition of "retirement benefit" is best


resolved by considering the public policy expressly declared

in the MESA.    It provides:

          Economic insecurity due to unemployment is a

     serious menace to the health, morals, and welfare

     of the people of this state.            Involuntary

     unemployment is a subject of general interest and

     concern which requires action by the legislature to

     prevent its spread and to lighten its burden which

     so often falls with crushing force upon the

     unemployed worker and his family, to the detriment

     of the welfare of the people of this state. Social

     security requires protection against this hazard of

     our economic life. Employers should be encouraged

     to provide stable employment.       The systematic

     accumulation of funds during periods of employment

     to provide benefits for periods of unemployment by

     the setting aside of unemployment reserves to be

     used for the benefit of persons unemployed through

     no fault of their own, thus maintaining purchasing

     power and limiting the serious social consequences

     of relief assistance, is for the public good, and


                                8

      the general welfare of the people of this state.

      [MCL 421.2.]


      The majority disregards this part of the act despite the


fact that the Legislature's declaration of public policy


contained there is of paramount importance.               Plaintiff lost


her   position    with   defendant    as   a   result    of    defendant's


decision to close the facility where she worked.                   She had


vested pension benefits that defendant distributed and treated


as hers prematurely. 


      Had defendant offered plaintiff reasonable employment,

plaintiff could have left her pension benefits undisturbed.

Instead, it terminated plaintiff's employment and prevented


her from drawing unemployment benefits.            It required her to

choose between paying her current living expenses or preseving

her retirement monies, contrary to the explicit public policy


of the state. Defendant's scheme only exacerbated plaintiff's

economic insecurity.

                          III.     CONCLUSION


      Ambiguity     exists    in     the   statutory          language   of


§ 27(f)(4)(a) of the MESA that defines a "retirement benefit"

as not including an amount paid in the course of liquidation


of a private pension or retirement fund.                The Court should


ascertain the Legislature's intent in using that expression by


referring to the stated purpose of the MESA and the underlying


public policy.       With these in mind, the only reasonable


construction is one that defines a pension distribution made


under the circumstances of this case as not constituting a

"retirement benefit." 



                                     9

     The meaning of "receive" is also subject to differing


reasonable interpretations.              In construing it, this Court


should   defer   to   the   meaning       that     the    state    and   federal


agencies     responsible          for     administering           unemployment


compensation have given to it.                The majority ignores this


principle,   preferring       a     definition       constructed         from    a


dissenting   opinion    and       dictionary       definitions,       which     it


contends is in keeping with the plain meaning of the statute.


This approach is contrary to the reasonable interpretation


advanced by the administrative agencies and to the purpose of


and the policy underlying the MESA.                      The term should be

construed as not inclusive of retirement funds transferred

directly into an individual retirement account. 


     I   would   affirm     the    Court      of    Appeals       holding   that

plaintiff was entitled to unemployment compensation benefits

under the MESA.


     MARKMAN , J., took no part in the decision of this case.





                                        10