King v. State of Michigan
King v. State of Michigan
Opinion of the Court
Defendants appeal a Court of Appeals judgment affirming the trial court’s grant of summary disposition in favor of plaintiff, which enjoined defendants from revoking plaintiffs resident insurance producer
The issues in this case are (1) whether in 2004 the Commissioner of the Office of Financial and Insurance Services
I. FACTS AND PROCEEDINGS
In 2000, plaintiff was convicted of operating a motor vehicle, under the influence of liquor (OUIL), a felony. MCL 257.625. In 2004, he applied to the Michigan Office of Financial and Insurance Services (OFIS)
Please be apprised that pursuant to 18 U.S.C. Section 1033 and 1034, specifically Section 1033(3)(2), permission to engage in the business of insurance is hereby granted to you by the Commissioner of the Office of Financial and Insurance Services under this federal statute in response to your application for such waiver. OFIS reviewed your 3rd OUIL felony conviction.
*212 Please note that it is highly recommended that this letter be safeguarded and kept together with your license as proof of this waiver under 18 U.S.C. 1033/1034 in case your record and/or ability to engage in the business of insurance is ever challenged by someone in the industry, state government, or federal government.
Thus, defendants unquestionably had been made aware of plaintiffs felony. The commissioner granted plaintiffs license.
Plaintiff then pursued a career as an insurance agent for a number of years. In the meantime, he has not been convicted of any other felonies or provided any new grounds for revocation of his license that we are aware of. In 2008, defendants began proceedings to revoke plaintiffs license, and plaintiff initiated the instant suit. The gravamen of defendants’ argument is that a change to the Insurance Code in 2002 had required the commissioner to deny plaintiffs application, that failing to do so was a mistake, and that the current provisions of the Insurance Code require the commissioner to correct that mistake. The trial court ruled that even if the commissioner had made a mistake in granting plaintiffs license, equity precluded defendants from revoking it now, and the Court of Appeals affirmed.
II. STANDARD OF REVIEW
The trial court’s decision on a motion for summary disposition is reviewed de novo. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). This Court reviews de novo questions of statutory interpretation. Id. The trial court’s exercise of its equitable authority is discretionary within the confines of equity jurisprudence and the facts of the particular case, Youngs v West, 317 Mich 538, 545; 27 NW2d 88 (1947), and this Court reviews a trial court’s grant of injunctive relief
III. THE INSURANCE CODE
A. INSURANCE CODE LICENSURE PROVISIONS IN 2004
Before 2002, the Insurance Code’s licensure provisions had required applicants to have “good moral character.” See former MCL 500.1204(4), as amended by 1986 PA 173. It remains the law today that no licensing agency may make a finding as to an applicant’s moral character on the sole basis of a criminal conviction. MCL 338.42. It also remains the law that “[o]rders, decisions, findings, rulings, determinations, opinions, actions, and inactions of the commissioner in [the Insurance Code] shall be made or reached in the reasonable exercise of discretion.” MCL 500.205.
The “good moral character” requirement in the Insurance Code’s licensure provisions was replaced by 2001 PA 228. When plaintiff applied for his license, MCL 500.1205(l)(b) provided that an application “shall not be approved” if the applicant had “committed any act that is a ground for denial, suspension, or revocation under [MCL 500.1239].” While this seems mandatory when read in isolation, MCL 500.1239(1) provided that “the commissioner may place on probation, suspend, revoke, or refuse to issue” a license for a list of possible reasons, including an applicant’s “having been convicted of a felony.” MCL 500.1239(l)(f) (emphasis added). Consistent with MCL 500.205, the licensure requirement mandates that the commissioner make a discretionary judgment call when reviewing an applica
In other words, 2001 PA 228 replaced the ambiguous judgment call of “good moral character” with a more rigorously defined judgment call that entailed consideration of enumerated scenarios under which adverse action may be found appropriate. When the applicable versions of MCL 500.1205, MCL 500.1239, and MCL 500.205 are read together, they set forth a licensure procedure that requires the commissioner to exercise judgment within a framework, rather than exercising judgment in a more nebulous environment. We reject defendants’ contention that the Insurance Code in effect in 2004 required the commissioner to deny plaintiffs application. The Insurance Code did not, and the commissioner’s exercise of discretion in granting plaintiff a license was therefore permissible.
We recognize that shortly before plaintiff applied for his license, the commissioner rendered a decision
Therefore, we answer the first question, whether in 2004 the commissioner had been required by statute to deny plaintiffs application, in the negative.
B. INSURANCE CODE LICENSURE PROVISIONS IN 2008 AND TODAY
Subsequently, 2008 PA 422 and 2008 PA 423 amended MCL 500.1205 and MCL 500.1239. MCL 500.1205 now provides in relevant part that “[a]n application for a resident insurer [sic] producer license shall not be approved unless the commissioner finds that the individual. .. [h]as not committed any act listed in [MCL 500.1239(1)].” And MCL 500.1239(l)(f) provides that “the commissioner shall refuse to issue a license” for “[h]aving been convicted of a felony.”
These two statutes are now consistent, and were a convicted felon to apply for an insurance producer license today, the commissioner would be required to deny it. Indeed, plaintiff concedes as much. But no language in these statutes rebuts the general rule of construction that changes to a statute should only apply prospectively. Even if we were to engage in a speculation that the amendment was intended to clarify the Legislature’s prior intent, amendments may not be applied retrospectively if doing so would impair a vested right. Brewer v AD Transp Express, Inc, 486 Mich 50, 56-57; 782 NW2d 475 (2010). The fact that an applicant like plaintiff would necessarily be denied a license today does not automatically invalidate defendant’s decision to exercise its discretion to grant him a license in 2004.
Although the current statutes require denial of a license, they do not require an existing license to be revoked. The first clause of MCL 500.1239(1) states in
Therefore, we answer the second question, whether defendant is currently required by statute to revoke plaintiffs license, in the negative.
rv REVOCATION
We observe initially that the plain language of the present Insurance Code gives the commissioner the discretion to pursue revocation of plaintiffs resident insurance producer license for a variety of possible reasons, including plaintiffs having been convicted of a felony. However, we emphasize that doing so must be a “reasonable exercise of discretion.” MCL 500.205. Here, the gravamen of defendants’ argument is that the commissioner is required to revoke plaintiffs license. This erroneous abdication of discretion is, in itself, an abuse of discretion. People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559 (1990). Therefore, in this case, the commissioner cannot be said to be engaging in a “reasonable exercise of discretion.”
With regard to this issue, we hold only that the commissioner may not revoke a license on the basis of the erroneous belief that he must do so when, in fact, he has discretion. Because this result is mandated by the plain terms of the Insurance Code, we make no pronouncement about whether equity applies here or what
V CONCLUSION
Plaintiffs license was properly granted by the commissioner in 2004. The Insurance Code does not require plaintiffs license to be revoked now. The commissioner could have exercised reasonable discretion and decided to pursue revocation of plaintiffs license; however, in this case, the commissioner necessarily abused that discretion by proceeding on the basis of an erroneous belief that he was required to revoke plaintiffs license.
For the reasons stated, we affirm the courts below.
A “resident insurance producer” is more commonly known as an insurance agent.
This position was held by Linda Watters from April 2003 until October 2007, when Ken Ross was appointed.
OFIS is now the Office of Financial and Insurance Regulation, but at most of the relevant times, including in the Court of Appeals, it was referred to as OFIS.
This section provides, among other things, that a person
who has been convicted of any criminal felony involving dishonesty or a breach of trust. .. may engage in the business of insurance or participate in such business if such person has the written consent of any insurance regulatory official authorized to regulate the insurer, which consent specifically refers to this subsection. [18 USC 1033(e).]
Mazur v Office of Fin & Ins Servs, issued May 14, 2004 (Docket No. 2003-1515).
Concurring Opinion
(concurring). I concur in affirming the judgment of the Court of Appeals, but write separately to express my view that the Office of Financial and Insurance Services (OFIS)
First, I note that the stark conflict between MCL 500.1205(l)(b) and MCL 500.1239 as it existed in 2004
Defendants argue that the mandatory-denial provision applies only to resident insurance producers, whereas the discretionary-denial provision would apply to nonresident insurance producers. Statutes, however, “must be construed to prevent absurd results . . . People v Tennyson, 487 Mich 730, 741; 790 NW2d 354 (2010) (quotation marks and citation omitted). An interpretation of a statute is absurd when “it is clearly inconsistent with the purposes and policies of the act in question.” Cameron v Auto Club Ins Ass’n, 476 Mich 55, 128-129; 718 NW2d 784 (2006) (KELLY, J., dissenting). One of the main purposes animating our statutory insurance scheme is to protect Michigan citizens from unscrupulous insurers. See title of 1956 PA 218 (“An act. . . to provide for the protection of policyholders, claimants, and creditors of unsound or insolvent insurers . . . .”); In re Certified Question, 413 Mich 22, 38; 319 NW2d 320 (1982) (“The extensive regulation of the
Second, I believe that equitable remedies may be available when a statute is ambiguous. See Stokes v Millen Roofing Co, 466 Mich 660, 672; 649 NW2d 371 (2002) (opinion by WEAVER, J.)
Third, a court may, in its sound discretion, grant equitable relief if no legal remedy is available or if an available remedy at law is doubtful or uncertain. See Tkachik v Mandeville, 487 Mich 38, 45; 790 NW2d 260 (2010), quoting Powers v Fisher, 279 Mich 442, 448; 272 NW 737 (1937); Edsell v Briggs, 20 Mich 429, 433 (1870). In the instant case, the only statutory remedy available to plaintiff after revocation is an administrative appeal to “determine the reasonableness of the commissioner’s action.” MCL 500.1239(2). Because defendants argue that they must revoke plaintiffs license, vowever, the only “reasonableness” determination to be at such an appeal would be whether the commissioner reasonably concluded that plaintiff had a felony conviction. Because there is no question that the felony
Fourth, in certain cases, equitable estoppel may be an appropriate remedy where one party has changed its position in reasonable reliance on a governmental mistake. See, e.g., Pittsfield Twp v Malcolm, 375 Mich 135, 147-148; 134 NW2d 166 (1965) (estopping a municipality from enforcing its zoning regulations against a kennel owner who was erroneously issued a building permit after he had relied on the permit and built a kennel). There is no question here that plaintiff has reasonably relied on the license issued to develop a career and that revocation would cause plaintiff an extreme detriment.
I would thus hold that a governmental licensing agency is estopped from revoking a license solely on the basis of the same fully disclosed and accurate facts for which it had previously granted an express waiver if the licensee has reasonably relied to his detriment on the issued license. The language “fully disclosed and accurate” requires that the licensing agency have before it all the information necessary when making its decision to grant a waiver. The phrase “reasonably relied” is equally important. Contrary to the dissent’s concerns, I cannot imagine a situation in which it would be reasonable for a child molester who was issued a daycare license or a dangerous felon who was issued a license to carry a firearm to rely on such a wrongfully issued license. The situation here is vastly different. First, all the materials available to the public at the time plaintiff applied for his license indicated that a waiver of felony convictions was possible.
A court’s discretionary use of equity allows “complete justice” to be done. Tkachik, 487 Mich at 46 (quotation marks and citation omitted). Achieving “complete justice” necessarily requires a court to examine and balance competing interests. It is beyond cavil that the need to protect children from child molesters would outweigh any interest of a child molester in keeping an erroneously issued license and the need to protect society from dangerous felons would outweigh any interest the felon has in keeping such a license. Any arguments posited that the rule I would apply to this case could allow such absurd results is pure hyperbole.
Accordingly, I concur in affirming the judgment of the Court of Appeals.
Now known as the Office of Financial and Insurance Regulation.
I continue to adhere to the definition of “ambiguity” expressed in Chief Justice Kelly’s lead opinion in Petersen, 484 Mich at 329 (stating that ambiguity exists “ ‘when a statute is capable of being understood by reasonably well-informed persons in two or more different senses’ ”) (citation omitted). But because the statute at issue here is ambiguous under any standard, it is unnecessary to consider this issue further.
The Court of Appeals noted (1) that the agency’s interpretation of the licensing statute in Mazur v Office of Fin & Ins Seros, Case No. 03-384-L,
Dissenting Opinion
(dissenting). This case requires this Court to interpret the relevant licensing provisions of the
I. ANALYSIS
A. STATUTORY ANALYSIS
This case requires that we interpret the Insurance Code — specifically MCL 500.1205 and MCL 500.1239 — as it existed in 2004. When “interpreting statutory language, this Court’s primary goal is to give effect to the Legislature’s intent. If the Legislature has clearly expressed its intent in the language of a statute, that statute must be enforced as written, free of any ‘contrary judicial gloss.’ ”
An application for a resident insurer [sic] producer license shall not he approved unless the commissioner finds that the individual meets all of the following:
(b) Has not committed any act that is a ground for denial, suspension, or revocation under [MCL 500.1239].[3]
In 2004, MCL 500.1239 provided, in relevant part:
(1) In addition to any other powers under this act, the commissioner may place on probation, suspend, revoke, or refuse to issue an insurance producer’s license or may levy a civil fine under [MCL 500.1244] or any combination of actions for any 1 or more of the following causes:
(f) Having been convicted of a felony.[4]
At its most basic level, this case turns on the answer to a single question: in 2004, did these provisions of the Insurance Code prohibit OFIS from issuing a resident insurance producer license to an applicant who had been convicted of a felony? Defendant OFIS argues that these provisions required OFIS to deny plaintiff a license because he had been convicted of a felony. Plaintiff argues, however, that these provisions, when read together, did not constitute a statutory mandate that required OFIS to deny plaintiff a license, and therefore OFIS is equitably estopped from revoking it now. Thus, the primary dispute here is whether OFIS
If MCL 500.1205(l)(b) is read in isolation, there is no question that OFIS cannot issue a license to a convicted felon. In effect, it provides that an application for a resident insurance producer license shall not be approved unless the commissioner finds that the individual has not committed a felony. Here, OFIS approved a license without making the requisite finding that plaintiff had not committed a felony. Indeed, the opposite is true: OFIS knew that plaintiff had in fact committed a felony, as plaintiff honestly disclosed and as OFIS recognized in the letter it sent to plaintiff when informing plaintiff that he was being granted a “waiver.”
However, MCL 500.1205(l)(b) cannot be read in isolation, but must be interpreted in light of the language of MCL 500.1239(l)(f), to which it makes direct reference. By itself, MCL 500.1239(1)(f) permits the OFIS commissioner to refuse to issue a license when an applicant has a felony conviction, but it does not forbid OFIS to grant the license as MCL 500.1205 does.
The OFIS commissioner resolved the apparent conflict between MCL 500.1205 (no discretion) and MCL 500.1239 (some discretion) in favor of applying the “no discretion” standard of MCL 500.1205 because it is “more particular” and “particularly con
I would hold that OFIS correctly resolved the apparent conflict between MCL 500.1205 and MCL 500.1239 in the way that most closely adheres to the Legislature’s stated intent.
The Legislature has chosen to apply differing standards to resident and nonresident insurance producers. While MCL 500.1205 provides that a resident applicant “shall not” be licensed if he has committed an act described in MCL 500.1239, MCL 500.1206a(1) contrarily provides that “[u]nless denied licensure under [MCL 500.1239], a nonresident person shall receive a nonresident insurance producer license . . . .”
This interpretation avoids rendering any language nugatory or mere surplusage.
Further, this construction is in accord with the rule of statutory construction providing that where “ ‘a statute contains a general provision and a specific provision, the specific provision controls.’ ”
The lead and concurring opinions fail to consider the entire structure of the Insurance Code when coming to their respective conclusions that the code allows a discretionary standard to be applied to nonresident applicants, and that the code is ambiguous. As the above analysis demonstrates, and contrary to the argument made by the concurring justice, these statutory provisions are reconcilable and thus certainly not ambiguous.
Moreover, plaintiffs contrary attempt to reconcile these statutory provisions is not convincing. Plaintiff chiefly argues that OFIS has the discretion to determine whether grounds exist to deny a license and thus may “find” that an applicant has not committed a felony for the purposes of licensing. However, the relevant factual inquiry that OFIS must undertake does not leave room for ambiguity: either an applicant has been convicted of a felony or he has not. If the applicant has been convicted of a felony, the commissioner can hardly be said to have the discretionary power to “find” that he has not been convicted of a felony. Indeed, a decision so out of accord with reality would clearly constitute obvious error requiring reversal.
Aside from failing to consider the entire structure and separate provisions of the Insurance Code, the lead opinion’s statutory analysis does not otherwise withstand scrutiny. The lead opinion generally concludes that OFIS initially had broad discretion to render its licensing decision, but that the 2002 amendments to the Insurance Code replaced the “nebulous environment”
The lead opinion fails to explain how the relevant statutory provisions are “read together,”
Perhaps more egregious, the lead opinion’s ultimate interpretation fails to accord meaning to all the words of the statute. In particular, the statement in MCL 500.1205 that the insurance license “shall not be approved” if the applicant has been convicted of a felony is rendered functionally without meaning by the lead
B. ANALYSIS OF THIS COURT’S PRIOR CASES
This Court has long held in cases involving similar licensing decisions that revocation procedures must be invoked if a license was granted in excess of an agency’s statutory authority. As far back as the early twentieth century, this Court decided that a facially valid license that was nevertheless issued in violation of a statute should be revoked.
[The defendant-licensee] argues that the commission has the authority to continue the license on the ground of manifest injustice. We disagree. As an agency, the commission has no inherent powers and, therefore, any authority*233 must come from the Legislature. The commission’s plenary power to regulate liquor traffic is subject to statutory restraints. The commission’s rules and regulations, promulgated pursuant to the Liquor Control Act, MCL 436.7; MSA 18.977, prohibit the commission from issuing an SDD license in violation of the one-half[-]mile rule. None of the exceptions to the rule applied and, thus, the commission had no discretion to waive the rule. Where a liquor license is issued in violation of a statute, it must be revoked. Manifest injustice is not a means by which the commission may avoid legislative mandate as well as its own regulations.[25]
In short, these cases have continually reaffirmed the principle that a governmental entity cannot act in contravention of its statutory powers. When an agency does not act in accordance with its limited statutory powers, its decision should not stand, even if that action will result in a harsh outcome.
This principle is particularly important because of the structure of our government, which provides for a separation of powers among the three branches. This system requires that the Legislature and Governor make policy choices and that the courts enforce those political decisions as written. In this case, because the statute as written at the time of plaintiffs licensing in 2004 mandated that OFIS decline to license anyone who had been convicted of a felony, OFIS should not have licensed plaintiff, and this Court cannot use equity to displace the statutory mandate or otherwise validate that improper decision.
This Court has reaffirmed this basic principle underlying the separation of powers throughout its history. In Stokes v Millen Roofing Co, this Court held the trial court’s analysis invalid because “equity is invoked to
to begin the process of attrition whereby, in appealing cases, the statutory bite is made more gentle, until eventually the statute is made practically innocuous and the teeth of the strong legislative policy effectively pulled. If cases of such strong equities eventually arise that the statute does more harm than good the legislature may amend it. ..[27]
Similarly, in Martin v Secretary of State, this Court again reaffirmed the guiding principle that courts cannot use equity to displace a statutory requirement designed by the Legislature.
it is not ‘manifestly unjust’ for this Court to conclude that the plain words of a law enacted by the Legislature cannot be modified by a clerk in the Secretary of State’s office (or indeed by the Secretary of State herself).. .. There cannot be as many laws as there are public servants who dispense guidance or advice on the meaning of the law.”[30]
It would indeed be a strange system of government if every administrator or bureaucrat had the power to make decisions in derogation of the limited statutory powers provided by the Legislature. Yet the lead and concurring justices would essentially give every governmental bureaucrat the extraordinary power to countermand what the Legislature has proscribed. It is an abrogation of the legitimate exercise of judicial power to allow agency decisions to be the ultimate authority in licensing when those decisions are made in a manner contrary to a legislative mandate.
In contravention of these principles, both plaintiff and the concurring justice cite approvingly Pittsfield Twp v Malcolm for the proposition that there are cases that present “exceptional circumstances” whereby courts may employ equity to avoid unjust results.
On the basis of my statutory construction, which I believe properly accords meaning to all the Legislature’s chosen words in the relevant statutes and considers the entire structure of the Insurance Code, I would hold that the Court of Appeals erred by failing to analyze the relevant statutory provisions as they existed in 2004 and then invoking equity to avoid the result of that analysis.
II. RESPONSE TO THE LEAD OPINION’S ADDITIONAL ARGUMENTS
The lead opinion asks and answers three questions, only one of which is actually necessary for the disposition of this case: did the Insurance Code expressly prohibit OFIS from issuing a license to plaintiff in 2004? As discussed earlier, the lead opinion refuses to engage in any meaningful statutory construction in answering this question and thereby draws a conclusion that fails to give effect to all the words of the relevant statute. The lead opinion then engages in a discussion
The lead opinion asks “whether the commissioner is now required by statute to affirmatively revoke plaintiffs license on the basis of the same prior felony.”
Additionally, the lead opinion asks “whether the commissioner is now permitted to revoke plaintiffs license on the basis of the same prior felony.” It then curiously and circularly answers this question by stating that “the commissioner may not revoke a license on the basis of the erroneous belief that he must do so when, in fact, he has discretion.”
Again, the question posed and answer provided by the lead opinion is irrelevant to the actual argument that OFIS makes as authority for its ability to revoke
being guided by the mandatory language of [MCL 500.] 1205 and further guided by this Court’s decisions in similar licensing cases where this Court has clearly said when a license is granted in excess of the statutory authority or in violation of it, it’s not discretionary and the agency is bound to revoke it.
[While] procedurally this is a revocation proceeding,... the revocation proceeding is touched off by the grant of an improper license. So it’s not — this proceeding is not governed by the normal discretionary standard for revocation because the license here was never validly issued by the agency.
Indeed, counsel for OFIS further admitted that if this were a typical revocation proceeding governed by the discretionary standard employed in such proceedings, then the commissioner would have “no grounds to revoke Mr. King’s license . . . .” However, as OFIS argues and the above analysis demonstrates, that does not dispose of the true issue in this case: whether the statute, as it was written in 2004, mandated that plaintiff not be given a license, thus making his subsequent licensure invalid. And as previously discussed, this Court’s caselaw has continually reaffirmed that even though statutory revocation provisions may be written as discretionary, those revocation procedures must be invoked if the original license was granted in excess of an agency’s authority.
Finally, the lead opinion also fails to distinguish (or even discuss) any of the relevant caselaw holding that a license issued in violation of a statute should be revoked. Nor do the justices joining the lead and concurring opinions appear willing to recognize the implications of their decision today, and I question whether those justices would draw the same conclusions if plaintiff here were less sympathetic. Consider, for example, a convicted child molester who received a license to open a daycare center, contrary to a clear statutory
HI. CONCLUSION
The proper interpretation of the relevant statutory provisions as articulated in this dissent would admittedly produce a result in this case that is harsh for this plaintiff who properly disclosed a condition that made him ineligible for the license he was improvidently granted. While this result is unfortunate for this particular plaintiff, it is also what the law requires. The inflexibility purposely built into this statute by the Legislature and approved by the Governor is the result
The Office of Financial and Insurance Services has since been reorganized and is now part of the Official of Financial and Insurance Regulation, one of the named defendants in this case.
Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1, 8; 779 NW2d 237 (2010), quoting Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003) (citation omitted).
3 Italics and bold added.
4 Emphasis added.
Mazur v Office of Fin & Ins Servs, Case No. 03-384-L, Docket No. 2003-1515 (May 14, 2004), p 3.
Mazur is a nonbinding administrative decision. Nevertheless, when interpreting a statute that a governmental agency has the power to interpret and duty to enforce, this Court accords
“respectful consideration” for the agency’s statutory interpretation, and will provide “cogent reasons” for overruling an agency’s interpretation. Furthermore, when the law is “doubtful or obscure,” the agency’s interpretation is an aid for discerning the Legislature’s intent. However, the agency’s interpretation is not binding on the courts, and it cannot conflict with the Legislature’s intent as expressed in the language of the statute at issue. [In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 103; 754 NW2d 259 (2008), citing and quoting Boyer-Campbell Co v Fry, 271 Mich 282; 260 NW 165 (1935).]
Contrary to the standard cited in the lead opinion, see ante at 214, Rovas and Boyer-Campbell remain good law and therefore articulate the proper standard by which this Court reviews an administrative agency’s interpretation of a statute. See generally Rovas, 482 Mich at 104-109.
Individuals who receive nonresident insurance producer licenses are subject to separate requirements to obtain and maintain a license that are different from applicants from Michigan who receive resident insurance producer licenses. See, generally, MCL 500.1204e and MCL 500.1206a.
Emphasis added.
See Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001) (observing that this Court must “avoid a construction that would render any part of the statute surplusage or nugatory”).
Jones v Enertel, Inc, 467 Mich 266, 270; 650 NW2d 334 (2002), quoting Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994); see also People v Ellis, 224 Mich App 752, 756; 569 NW2d 917 (1997) (“The specific statute is treated as an exception to the general one.”). This Court has further explained that “[i]n order to determine which provision is truly more specific and, hence, controlling, we consider which provision applies to the more narrow realm of circumstances, and which to the more broad realm.” Miller v Allstate Ins Co, 481 Mich 601, 613; 751 NW2d 463 (2008).
Of note, the applicable versions of both MCL 500.1205 and MCL 500.1239 became effective March 1, 2002, and therefore the rule of statutory interpretation that the latter enacted statute prevails in the face of a statutory conflict is inapposite in this case.
MCL 500.205 generally directs that “[o]rders, decisions, findings, rulings, determinations, opinions, actions, and inactions of the commissioner in this act shall be made or reached in the reasonable exercise of discretion.” For the reasons stated in the text, I reject the lead opinion’s representation of MCL 500.205 as trumping the limitations imposed by MCL 500.1205.
The concurring justice merely notes the conflict in wording, but provides absolutely no attempt at statutory interpretation or reconciliation of the separate statutory provisions before declaring that the statutes “irreconcilably conflict!]” with each other. See ante at 218 (citation and quotation marks omitted). Nor does the concurring justice accord any significance to the fact that the code treats resident and nonresident applicants under separate standards, instead merely finding this Legislative choice “absurd.”
World Book, Inc v Dep’t of Treasury, 459 Mich 403, 416; 590 NW2d 293 (1999).
See, e.g., Lansing Mayor v Pub Serv Comm, 470 Mich 154, 166; 680 NW2d 840 (2004).
Ante at 214.
See Wayne Co v Hathcock, 471 Mich 445, 456; 684 NW2d 765 (2004) (“In interpreting this statutory language, this Court’s primary goal is to give effect to the Legislature’s intent. If the Legislature has clearly expressed its intent in the language of a statute, that statute must be enforced as written, free of any ‘contrary judicial gloss.’ ”) (citation omitted); In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich 109, 119; 659 NW2d 597 (2003) (“The imposition of a contrary judicial gloss is inappropriate where the Legislature has clearly expressed its intentions in the words of the statute.”).
Ante at 214.
The lead opinion similarly determines that the Mazur decision “was incorrect” with, literally, no explanation why. See ante at 215.
Emphasis added.
See George v Travis, 185 Mich 597; 152 NW 207 (1915).
323 Mich 576, 579; 36 NW2d 297 (1949).
Id. at 580. This case, like others at the time, held that a licensee has no vested or property interest in a license and that due process protec
339 Mich 78, 82-83; 62 NW2d 594 (1954).
345 Mich 569, 576; 77 NW2d 135 (1956).
26 150 Mich App 104, 112-113; 388 NW2d 263 (1986) (citations omitted).
Stokes v Mitten Roofing Co, 466 Mich 660, 671-672; 649 NW2d 371 (2002).
27 Bilt-More Homes, Inc v French, 373 Mich 693, 699; 130 NW2d 907 (1964) (quotation marks and citation omitted), quoted and reaffirmed in Stokes, 466 Mich at 672.
482 Mich 956 (2008), adopting the opinion in relevant part of Judge O’Connell, in Martin v Secretary of State, 280 Mich App 417, 430; 760 NW2d 726 (2008) (O’Connell, EJ., dissenting).
See Martin, 482 Mich at 956-957 (Young, J., concurring).
30 Id. at 957 (Markman, J., concurring).
375 Mich 135, 144-148; 134 NW2d 166 (1965).
125 Mich App 24; 335 NW2d 708 (1983).
Ante at 211.
Ante at 216.
Ante at 216-217.
See MCL 722.115g(3).
See MCL 28.425b; MCL 28.425b(7)(f) and (11).
See MCL 750.224Í.
Ante at 217.
The purposefulness of this inflexibility and the bright-line nature of this rule was reaffirmed when the Legislature amended MCL 500.1239(1) in 2009 in order to remove any dispute that OFIS must deny convicted felons a license to be a resident insurance producer. MCL 500.1239 now provides:
(1) In addition to any other powers under this act, the commissioner may place on probation, suspend, or revoke an insurance producer’s license or may levy a civil fine under section 1244 or any combination of actions, and the commissioner shall refuse to issue a license under section 1205 or 1206a, for any 1 or more of the following causes:
(f) Having been convicted of a felony. [Emphasis added.]
This amended language unanimously passed both chambers of the Michigan Legislature, and was signed into law by Governor Granholm on January 5, 2009. See 2008 PA 423.
See, e.g., Union Carbide Corp v Pub Serv Comm, 431 Mich 135, 146; 428 NW2d 322 (1988); Mason Co Civic Research Council v Mason Co, 343 Mich 313, 326-327; 72 NW2d 292 (1955); Taylor v Pub Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922).
Reference
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