-
MEMORANDUM
TO: Carol Isaacs, Deputy Attorney General Michigan Department of Attorney General
FROM: Brian D. Devlin, Director
Office of Regulatory Reform
Michigan Department of Management and Budget
DATE: October 11, 2004
RE: ORR # 2004-029 ED “Teacher Education Code”
On September 16, 2004, a Michigan Court of Appeals panel issued an order in Verizon North, Inc. v. Public Service Commission, (Docket No. 246691) that nullified administrative rules regulating the quality of telecommunications service, holding that language contained in 2000 PA 295, had stripped the Public Service Commission of administrative rulemaking power.1 Similar language is found in at least 11 other statutes,2 including MCL 380.1851a, a section of the Michigan School Code under which the Department of Education has proposed the promulgation of an administrative rule set identified as #2004-029 ED “Teacher Education Code.” On October 8, 2004, the Department of Education transmitted an email message to the Office of Regulatory Reform (ORR), indicating the agency’s intent to adopt the proposed rule set and requesting that the rule set be filed with the Office of
1 “The plain language of MCL 484.2213(3) expresses the Legislature's intent that the PSC shall not promulgate rules if MCL
24.245 and MCL 24.246 were found unconstitutional by the Supreme Court and no statute provided for legislative review of administrative rules was enacted within the ninety-day time period. Hence, no legislation providing for legislative review of administrative rules was passed within ninety days of the decision in Blank, supra, and therefore the PSC lacked authority under the MTA to promulgate further rules. Therefore, the administrative rules in question are nullified.”
2 The twelve statutes containing substantially similar language are: MCL 286.711
MCL 324.3131
MCL 324.35801
MCL 324.35901 MCL 330.1114a MCL 333.2233 MCL 380.1851a MCL 388.522
MCL 400.6
MCL 432.11
MCL 484.2213
MCL 791.206
the Great Seal pursuant to MCL 24.246. By this memorandum, ORR is requesting a consultation with your office before it files the proposed rule set.
Paragraph 15 of Executive Reorganization Order E. R. O. 1995-5, MCL 10. 151, provides in part that ORR shall consult with the Department of Attorney General regarding any proposed rule that the ORR finds may present a legal or constitutional issue. We would welcome your comments on whether the precedent established in the Verizon case would bar the filing of the proposed Department of Education rules or the proposed administrative rules of any of the other agencies that are subject to the limitations contained in the twelve statutes referenced above.
If you require any additional information, please contact me at 517.241.1677.
Enclosures
C: Carol Easlick, Regulatory Affairs Officer; Department of Education
