author: Bashara, P.J. Beasley, J.

text:
    REHABILITATION CENTER, INC v BLUE CROSS & BLUE SHIELD OF MICHIGAN ALLEN PARK CONVALESCENT HOME, INC v BLUE CROSS & BLUE SHIELD OF MICHIGAN NIGHTINGALE WEST, INC v BLUE CROSS & BLUE SHIELD OF MICHIGAN VENOY CONTINUED CARE CENTER v BLUE CROSS & BLUE SHIELD OF MICHIGAN WESTLAND CONVALESCENT CENTER v BLUE CROSS & BLUE SHIELD OF MICHIGAN
    Docket Nos. 78-1823 thru 78-1830.
    Submitted June 21, 1979, at Detroit.
    Decided November 5, 1979.
    Leave to appeal applied for.
    In 1977, Blue Cross and Blue Shield of Michigan, a nonprofit medical care corporation, decided to change the method for computing the rate of reimbursement for skilled nursing care under its convalescent and long-term care program. Blue Cross notified the affected participating nursing homes of the proposed changes in the method of computing the rate of reimbursement and sent to each participating nursing home a new contract incorporating the proposed changes. Blue Cross submitted to the Michigan Commissioner of Insurance its new rate of reimbursement plan. The Commissioner notified the affected nursing homes that a public hearing on the matter of the revised reimbursement plan would be held. The nursing homes requested a contested case hearing. The request for a contested case hearing was denied by the Commissioner of Insurance, who subsequently issued an order approving the new plan for reimbursement.
    Eight separate actions, involving some 50 nursing homes as plaintiffs, were brought in circuit court against Blue Cross and/ or the Commissioner of Insurance seeking review of the Commissioner’s decision. These actions were consolidated for hearing below. The Wayne Circuit Court, Horace W. Gilmore, J., determined that plaintiffs were entitled to a trial-type contested case hearing and remanded the matter to the Commissioner of Insurance for such a hearing. The Commissioner of Insurance appeals, arguing that rate of reimbursement approval does not require a trial-type hearing. Held:

      References for Points in Headnotes
    [1, 5] 1 Am Jur 2d, Administrative Law §§ 129, 130, 181.
    [2-4] 16A Am Jur 2d, Constitutional Law §§ 580-586.

      1. The due process clause of the constitution requires that a hearing be provided before the government seeks to deprive a person of a property right. The property interest necessary to invoke the constitutional right to a hearing must be more than an abstract need or desire or a unilateral expectation of a benefit by the person holding the property interest; rather, the property interest must be such that the person holding the property interest has a legitimate claim of entitlement to the benefit.
    2. The substantial economic interest of nursing homes in the convalescent and long-term illness care program offered by Blue Cross and Blue Shield of Michigan, while a property interest, is not the type of property interest to which the constitutional right to a due process hearing attaches, since the nursing homes do not have a legitimate claim of entitlement, statutory or otherwise, to the unaltered continuation of the program.
    3. The request before the Commissioner of Insurance for the change in the rate of reimbursement by Blue Cross under its convalescent and long-term care program was not subject to the contested case provisions of the Administrative Procedures Act. The statutory scheme for approval of rates of payment by a nonprofit medical care corporation does not require an evidentiary hearing, thus, the approval process by the Commissioner of Insurance is not a contested case within the meaning of the Administrative Procedures Act.
    Reversed.
    Beasley, J., concurred in the opinion of the Court; however, he further urged that the Legislature give consideration to spelling out in the statute a procedure for reviewing rates of payments which would include establishing standards for such review.
    1. Administrative Law — Insurance — Medical Care Services — Regulation.
    The rates charged subscribers and the rates of payment to contracting hospitals, nursing facilities and- home health care agencies by Blue Cross and Blue Shield of Michigan, a nonprofit medical care corporation, are subject to approval of the Michigan Commissioner of Insurance (MCL 550.503; MSA 24.623).
    2. Constitutional Law — Due Process — Property Rights — Hearings. .
    The due process clause of the constitution requires that a hearing be provided before the government seeks to deprive a person of a property right.
    3. Constitutional Law — Due Process — Property Rights.
    The property interest in a benefit such that the deprivation of that benefit gives rise in the person holding that interest to a right to a hearing must be more than an abstract need or desire or the unilateral expectation of that property interest; rather, such person must have a legitimate claim of entitlement to the benefit.
    4. Constitutional Law — Due Process — Property Rights — Medical Care Services Program.
    The substantial economic interest of nursing homes in a convalescent and long-term illness care program offered by a nonprofit medical care corporation, while a property interest, is not the type of property interest for which the constitutional right to due process requires a hearing prior to termination, since the nursing homes do not have a legitimate claim of entitlement, statutory or otherwise, to the unaltered continuation of the program.
    5. Administrative Law — Contested Cases — Medical Care Services — Rates — Regulation.
    A contested case hearing pursuant to the Administrative Procedures Act is not required prior to approval by the Commissioner of Insurance of a revision to the rate of reimbursement to nursing homes under a convalescent and long-term care program offered by a nonprofit medical care corporation, since the statutory scheme for rate of payment approval by the Commissioner of Insurance does not require an evidentiary hearing, and, thus, such approval process is not a contested case within the meaning of the Administrative Procedures Act (MCL 24.203[3]; MSA 3.560[103][3]).

      Cook & Pringle, P.C., for plaintiff Rehabilitation Center, Inc.

      Barris, Sott, Denn & Driker (by Eugene Driker,

      Stephen E. Glazek and Barbara Shaw Harvey), for plaintiff Allen Park Convalescent Home, Inc.

      David Lebenbom, P.C., for Nightingale West Inc.

      Bellanca, Beattie & DeLisle, for Venoy Continued Care Center, Inc.

      Frimet, Goren & Bellamy, P.C. (by Alan G. Gilchrist), for Westland Convalescent Center.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harry G. Iwasko, Jr., and Louis J. Porter, Assistants Attorney General, for defendant Commissioner of Insurance.
    Before: Bashara, P.J., and Beasley and J. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Bashara, P.J.

In 1966, Blue Cross and Blue Shield of Michigan instituted a convalescent and long-term illness care (CLTC) program. Its purpose is to provide skilled nursing care to patients who would otherwise require hospitalization at a significantly higher cost. In order for a nursing home to qualify for participation in the program, it must be accredited by the Joint Commission on Accreditation of Hospitals.

Plaintiffs are nursing homes which have contracted with Blue Cross to participate in the CLTC program. In order to become accredited, some of the plaintiffs upgraded their facilities by adding additional personnel and equipment.

For 11 years following the inception of the program, the rate at which Blue Cross would reimburse plaintiffs for services rendered to Blue Cross subscribers remained fixed at the lesser of one-half the average per diem charged for acute care by local hospitals or the actual bill charged by the nursing home, if reasonable and customary. In September, 1977, Blue Cross notified plaintiffs that the program was being changed to limit reimbursement to a ceiling based upon the 80th percentile of the Medicare rates of payment on a regional basis. Plaintiffs were also sent new contracts, effective October 1, 1977.

Under the new contract, Blue Cross was to reimburse participating providers according to its reimbursement policies as established from time to time by its Board of Directors. On September 30, 1977, Blue Cross notified plaintiffs that reimbursement for their services would be limited to $35.98 per day.

Several of the plaintiffs then brought suit in Wayne County Circuit Court, and temporary restraining orders were issued preventing implementation of the revised formula.

On November 8, 1977, the Insurance Commissioner for Michigan notified plaintiffs that a public hearing would be held on the matter of the revised reimbursement ceilings. Plaintiffs’ requests for a contested hearing were denied. The Insurance Commissioner subsequently issued an order approving the new plan of reimbursement.

Plaintiffs sought judicial review of the Commissioner’s decision. The Wayne County Circuit Court found in favor of plaintiffs and remanded the case to the Commissioner for a trial-type contested hearing. From that decision and order, the Commissioner appeals.

Blue Cross and Blue Shield of Michigan is a nonprofit medical care corporation, MCL 550.301 et seq.; MSA 24.591 et seq. As such, rates charged subscribers and rates of payment to contracting hospitals, nursing facilities and home health care agencies are subject to the approval of the Commissioner of Insurance. MCL 550.503; MSA 24.623.

The sole issue before us is whether plaintiffs are entitled to a contested hearing before the Commissioner of Insurance as an integral part of the rate-approval procedure. The lower court ruled that plaintiffs were entitled to such a hearing on two bases: fundamental due process and a statutory right under § 3(3) of the Administrative Procedures Act, MCL 24.203(3); MSA 3.560(103)(3).

When the government seeks to deprive a person of a property right, due process requires a hearing appropriate to the nature of the case. Rockwell v Crestwood School District Board of Education, 393 Mich 616, 633; 227 NW2d 736 (1975). The concept of "property” has been broadly construed to include interests which do not fall within traditional notions. Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970). However, there are limits to what constitutes a property interest. In Board of Regents of State Colleges v Roth, 408 US 564, 577; 92 S Ct 2701, 2709; 33 L Ed 2d 548, 561 (1972), the Supreme Court explained as follows:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.
"Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law —rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them.”

Plaintiffs have failed to demonstrate the deprivation of any property interest in this case.

Plaintiffs argue that they have a substantial economic stake in the CLTC program which constitutes a property interest. While plaintiffs may be economically dependent upon payments derived from the CLTC program, they have failed to demonstrate any "legitimate claim of entitlement”, statutory or otherwise, to the unaltered continuation of the program.

Plaintiffs’ claim that Morgan v United States, 304 US 1; 58 S Ct 773; 82 L Ed 1129 (1938), is analogous to the instant case is entirely without merit. In Morgan, the Supreme Court held that cattle market agencies had a right to a hearing prior to the determination, by the Secretary of Agriculture, of the maximum rates which those agencies could charge for their services. In the instant case, the Commissioner of Insurance does not set the maximum rates which plaintiffs may charge for their services. Plaintiffs are free to charge whatever they want. If they feel that Blue Cross payments are inadequate, they may decline to enter into participation contracts with Blue Cross.

Plaintiffs also cite a number of cases involving Medicare and Medicaid payments to hospitals and nursing homes. Mercy General Hospital v Weinberger, 410 F Supp 344 (ED Mich, 1975), Langhorne Gardens, Inc v Weinberger, 371 F Supp 1216 (ED Pa, 1974), Coral Gables Convalescent Home, Inc v Richardson, 340 F Supp 646 (SD Fla, 1972). In those cases, the government sought to reduce or terminate payments due particular institutions in order to recoup prior overpayments. The Courts held that procedural due process required at least a post-termination hearing. However, the health care providers in those cases were entitled by statute and contract to be reimbursed for services they had provided. See Langhorne, supra, 1220. Plaintiffs in the instant case have demonstrated nothing more than a unilateral expectation that the CLTC program would continue unchanged. Under Roth, supra, this is not a property interest to which the requirements of procedural due process attach.

Plaintiffs also contend that a contested hearing is mandated by the Administrative Procedure Act, MCL 24.203(3); MSA 3.560(103X3), which provides in pertinent part:

"(3) 'Contested case’ means a proceeding, including * * * rate-making, price-fixing, and licensing, in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing.”

Plaintiffs argue that the language "including rate-making” indicates that such proceedings are to be considered contested cases automatically. Such an interpretation was rejected with respect to licensing in Kelly Downs, Inc v Racing Comm, 60 Mich App 539; 231 NW2d 443 (1975). Unless an evidentiary hearing is required by law, the proceeding is not a "contested case”. 13-Southfíeld Associates v Dept of Public Health, 82 Mich App 678, 685; 267 NW2d 483 (1978). While MCL 550.503; MSA 24.623 provides for approval of Blue Cross rates of payment by the Insurance Commissioner, it does not require an evidentiary hearing. Hence, it is not a "contested case”.

The decision of the circuit court is reversed.

J. Daner, J., concurred.

Beasley, J.

(concurring). While concurring with the majority opinion, I would urge the Legislature to give consideration to amplifying the statute to spell out a procedure for review of rates of payment to contracting hospitals which will include establishing standards for such review. Blue Cross & Blue Shield of Michigan v Insurance Comm’r, 403 Mich 399, 428; 270 NW2d 845 (1978).


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    DEPARTMENT OF CIVIL RIGHTS ex rel MARY PARKS v GENERAL MOTORS CORPORATION
    Docket No. 78-1885.
    Submitted April 10, 1979, at Detroit.
    Decided November 5, 1979.
    Mary Parks was hired by General Motors Corporation, Fisher Body Division, on September 18, 1972, as an hourly employee on the second shift (4 p.m. to 12:30 a.m.). As a practicing Seventh Day Adventist, Mary Parks was forbidden, by her religion, from working on the Sabbath. The Seventh Day Adventist faith celebrates the Sabbath from sundown Friday to sundown Saturday. As a consequence, Mary Parks refused to work her regular shift on Friday, September 22, 1972. Four days later, on September 26, 1972, the Michigan Civil Rights Commission promulgated "interpretive guidelines” to the effect that the prohibition in the Michigan State Fair Employment Practices Act (FEPA) against discrimination included a duty to make reasonable accommodation to an employee’s religious needs.
    On September 29 and October 6, 1972, the claimant refused to work her regular shift. Each of the proposed absences and the reasons therefor were reported by Mary Parks to her foreman on the Thursday preceding the absences. As a result of these absences, Mary Parks’ employment was terminated on October 9, 1972, for the reason that she was "unable to meet the conditions of employment”.
    Mary Parks then filed a complaint with the Michigan Civil Rights Commission alleging that General Motors Corporation had unlawfully discriminated against her on the basis of her religion by releasing her from employment.
    The Civil Rights Commission determined that religious discrimination had occurred by finding that the respondent could have made reasonable accommodations to the claimant’s religious needs and, thereby, could have avoided the termination of employment. The respondent was ordered to cease and desist from discriminating against the claimant on the basis of religion, to reinstate the claimant in her former position or a comparable position and to pay the claimant all back pay which had accrued since the alleged discrimination.

      References for Points in Headnotes
    [1, 2] 1 Am Jur 2d, Administrative Law §§ 95, 96.
    [3] 15 Am Jur 2d, Civil Rights § 196.

      The order of the Civil Rights Commission was appealed to Oakland Circuit Court. Francis X. O’Brien, J., issued an opinion ruling that the Michigan Civil Rights Commission exceeded its authority in adopting and enforcing its religious accommodation guidelines and issued an order setting aside the Commission’s order, ruling that, based upon applicable authority, the Michigan Civil Rights Commission could not require employers to make reasonable accommodations to the religious needs of its employees. The Department of Civil Rights now appeals to the Court of Appeals. Held:

    1. The Michigan Civil Rights Commission cannot legislate or impose substantive duties or penalties beyond the scope of the legislative enactment authorizing it to prohibit religious discrimination. The Commission’s interpretive guideline, setting forth the agency’s view of § 3(a) of the FEPA is not binding in law. No sanction may be imposed by the Commission for the violation of the guideline.
    2. The provision of the FEPA (since repealed by the Elliott-Larsen Civil Rights Act) which prohibited religious discrimination in employment practices (§ 3[a]) did not include a duty for employers to make reasonable accommodations to the religious needs of employees. Such a construction goes beyond the legislative mandate set forth in § 3(a) of the FEPA. Fisher Body was under no obligation to make affirmative accommodations to conform to the employee’s religious needs.
    The order of the circuit court reversing the order of the Civil Rights Commission is affirmed.
    1. Administrative Law — Civil Rights Commission — Interpretive Guidelines — Michigan State Fair Employment Practices Act — Statutes.
    An interpretive guideline of the Civil Rights Commission, which sets forth that agency’s view of the section of the now-repealed Michigan State Fair Employment Practices Act which prohibited discrimination in employment on the basis of, among other things, religion, is not binding in law since this guideline is nothing more than "an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person” (MCL 423.303[a]; MSA 17.458[3][a], now repealed).

      2. Administrative Law — Interpretive Guidelines — Sanctions — Statutes.
    An administrative agency cannot adopt a guideline in lieu of a rule; an agency’s use of an "interpretive guideline” does not elevate the agency’s statement of policy contained therein to the status of a legislative rule and no sanction may be imposed for violation of it; if a sanction is to be imposed, the agency will have to rely not on its interpretation of a statute but on the statute itself (MCL 24.226; MSA 3.560[126]).
    3. Civil Rights — Employment Discrimination — Religious Discrimination — Michigan State Fair Employment Practices Act — Statutes.
    The prohibition on discrimination in employment on the basis of religion, in the now-repealed Michigan State Fair Employment Practices Act, did not impose an obligation on an employer to make affirmative accommodations to conform to an employee’s religious needs (MCL 423.303[a]; MSA 17.458[3][a], now repealed).

      Otis M. Smith, General Counsel (by Michael J. Connally), for General Motors Corporation.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael A. Lockman and Gary Kress, Assistants Attorney General, for defendant.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Allen, J.

This case presents a question of first impression in this jurisdiction: Whether the Michigan State Fair Employment Practices Act (FEPA), and in particular § 3(a) thereof, MCL 423.303(a); MSA 17.458(3)(a), prohibiting an employer "to discriminate against” any employee because of religion also imposes a duty on the employer to make reasonable accommodation to the religious needs of employees. The trial court answered that question in the negative and the Department of Civil Rights appeals of right. We affirm. However, our affirmance is limited to the FEPA and does not extend to the Elliott-Larsen Civil Rights Act which replaced the FEPA effective March 31, 1977.

Factual Background

This action originated with a complaint filed with the Michigan Civil Rights Commission by the claimant, Mary Parks, on October 19, 1972, alleging that the respondent, General Motors Corporation, Fisher Body Division, had unlawfully discriminated against her on the basis of religion by releasing her from employment. The case was decided below, and was submitted to this Court on a stipulation of facts entered into by the parties on March 2, 1976.

On September 18, 1972, the claimant was hired by the respondent as an hourly employee on the second shift (4 p.m. to 12:30 a.m.) at its Pontiac, Michigan plant. As a practicing Seventh Day Adventist, the claimant was forbidden, for religious reasons, to work on the Sabbath. The Seventh Day Adventist Sabbath is celebrated from sundown Friday to sundown Saturday. As a consequence of her strict observance of the Sabbath, claimant refused to work on Friday, September 22. Four days later, September 26, 1972, appellant, Michigan Civil Rights Commission, promulgated "interpretive guidelines” to the effect that the statutory prohibition against discrimination included a duty to make reasonable accommodation to the employee’s religious needs. Three days after the promulgation of the guidelines, Friday, September 29, and the following Friday, October 6, 1972, claimant refused to work on her Sabbath. Each of her proposed absences and the reasons therefor were reported by claimant to her foreman on the Thursday preceding the absences. As a result of these religion-based absences, the claimant’s employment with the respondent was terminated on October 9, 1972, for the reason that she was "unable to meet conditions of employment”.

Following the filing of a complaint charging the employer with religious discrimination against the claimant, the Michigan Civil Rights Commission issued an administrative charge on September 8, 1975. Based upon the submitted stipulation of facts, the commission determined that religious discrimination had occurred by finding that the respondent could have made reasonable accommodations to the claimant’s religious needs, and thereby could have avoided her termination. An opinion to this effect was issued by the commission on September 23, 1976, and the respondent was ordered to cease and desist from discriminating against claimant on the basis of religion, to reinstate claimant in her former or a comparable position, and to pay claimant all back pay accrued since the alleged discrimination.

On October 6, 1976, the order was appealed to the circuit court wherein the court issued an opinion ruling that the Michigan Civil Rights Commission exceeded its authority in adopting and enforcing its religious accommodation guidelines. Accordingly, on April 26, 1978, the circuit court judge issued an order setting aside the Commission’s order and ruling essentially that based upon applicable authority the Michigan Civil Rights Commission could not require employers to reasonably accommodate the religious needs of its employees. Claimant appeals to this Court.

Applicable Law

Section 3 of FEPA, 1955 PA 251 as amended; MCL 423.303; MSA 17.458(3), provides in pertinent part:

"It shall be an unfair employment practice:
"(a) For any employer, because of the race, color, religion, national origin or ancestry of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment, or any matter, directly or indirectly related to employment, except where based on a bona fide occupational qualification.”

This section remained essentially unchanged until the passage of the Elliott-Larsen Civil Rights Act in 1976, and reflects rights later acknowledged in the state constitution. Const 1963, art 1, § 2, art 5, § 29, Pompey v General Motors Corp, 385 Mich 537, 559, fn 20; 189 NW2d 243 (1971). However, these constitutional provisions did not create or define new civil rights in the area of private discrimination. Const 1963, art 1, § 4, Pompey v General Motors Corp, supra.

Following the lead of the Federal government, on September 26, 1972, the Michigan Civil Rights Commission promulgated "interpretive guidelines” construing § 3(a) of the FEPA as imposing an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business. In making this interpretation the commission drew "on the well developed body of federal law”. The statutory authority relied on by the commission in issuing this "interpretive guideline” allowed the commission to adopt, amend and repeal rules and regulations to carry out the provisions of the act, in accordance with the Administrative Procedures Act (MCL 24.71 et seq.; MSA 3.560[7] et seq., and MCL 24.101 et seq.; MSA 3.560[21.1] et seq., repealed and replaced by 1969 PA 306, as amended, MCL 24.201 et seq.; MSA 3.560[101] et seq.), MCL 37.5(e); MSA 3.548(5)(e) since repealed, and

"To issue such publications * * * as in its judgment will tend to promote good will and minimize or eliminate discrimination.” MCL 37.5(j); MSA 3.548(5)(j) since repealed.

In addition, the commission cited as its authority for the "interpretive guideline” MCL 24.207(h); MSA 3.560(107)(h). This provision excepts from the general definition of a "rule”:

"an interpretive statement, a guideline, an informational pamphlet or other material which in itself does not have the force and effect of law but is merely explanatory.”

In stating its "Guidelines on Religious Discrimination” the commission relied on MCL 24.232(4); MSA 3.560(132X4) which permits any administrative agency to adopt, by reference in its rules, any regulation adopted by an agency of the Federal government. In so noting, the commission went on to adopt by reference the Guidelines on Religious Discrimination promulgated by the United States Equal Employment Opportunity Commission (EEOC) on July 10, 1967, and which appear in 29 CFR 1605 (1967).

Appellant correctly acknowledges that it cannot legislate or impose substantive duties or penalties beyond the scope of the legislative enactment authorizing it to prohibit religious discrimination. Coffman v State Board of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951), McKibbin v Corporation & Securities Comm, 369 Mich 69; 119 NW2d 557 (1963). The Civil Rights Commission’s concession that the mere issuance of this "interpretative guideline”, setting forth the agency’s view of § 3(a) of the FEPA, is not binding in law, is correct since this guideline is nothing more than "an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person”. MCL 24.203(b); MSA 3.560(103X6). In addition, neither the authority relied on by the commission in issuing this guideline, nor the procedure followed in promulgating it, MCL 24.224; MSA 3.560(124), allows the commission to have its interpretation of § 3(a) given the force and effect of law qua rule. Bienenfeld, Michigan Administrative Law, 4-3 through 4-6, (ICLE, 1978). An agency cannot adopt a guideline in lieu of a rule. MCL 24.226; MSA 3.560(126). Thus, the agency’s use of an interpretive guideline does not elevate the statement to the status of a legislative rule and no sanction may be imposed for violation of it. Hence,

"If a sanction is to be imposed, the agency will have to rely not on its interpretation of the statute but on the statute itself.” Bienenfeld, Michigan Administrative Law, 4-6 (ICLE 1978),

and see, 1 Cooper, State Administrative Law, p 265 (1965), Davis, Administrative Law Text, § 5.03 (3d ed, 1972).

Since it is clear that the interpretive guideline construing § 3(a) of the FEPA has no legal effect with respect to the respondent employer, it is necessary to determine whether that section, by its terms, i.e., the prohibition of religious discrimination, mandates that an employer make affirmative accommodations for the religious needs of its employees. Therefore, in light of the various intrinsic and extrinsic aids to construction of statutory provisions, we are required to decide whether the FEPA prohibition against religious discrimination in employment practices includes a duty reasonably to accommodate the religious needs of an employee. We hold that it did not, for the following reasons.

Discussion

As noted above, the Civil Rights Commission followed the lead of the Federal government in issuing its interpretative guideline dealing with religious accommodation in employment practices. Likewise, we find it useful to examine Federal precedent in this area for two reasons. First, Federal law provides a good general source for interpreting state civil rights legislation because of the great number of decided cases. See Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405, 419; 157 NW2d 213 (1968). Second, we look for guidance to the Federal courts, because they have addressed the precise issue raised on appeal.

In 1964, Congress enacted the Civil Rights Act of 1964, which, in pertinent part, § 703(a), contained language substantially identical to § 3a of the FEPA:

"(a) It shall be an unlawful employment practice for an employer—
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 USC 2000e-2.

In 1966, the Equal Employment Opportunity Commission (EEOC) issued guidelines that declared that an employer was required "to accommodate to the reasonable religious needs of employees * * * where such accommodation can be made without serious inconvenience to the conduct of the business”. 29 CFR § 1605.1 (1967). In 1967, the EEOC amended the guidelines by interpreting § 703(a) of the Civil Rights Act of 1964 as imposing a duty on an employer "to make reasonable accommodation to the religious needs of employees and prospective employees where such accommodations can be made without unique hardship on the conduct of the employer’s business”. 29 CFR § 1605.1 (1968). It was this latter interpretation that was later adopted by reference by the Michigan Civil Rights Commission on September 26, 1972. The guidelines, as issued by the EEOC or as adopted by the Michigan Civil Rights Commission, failed to define the terms "reasonable accommodation” and "undue hardship”.

When, in the course of events, the EEOC attempted to enforce these guidelines against employers charged with failing to accommodate the religious needs of their employees, the guidelines were challenged as imposing upon the employers a duty which exceeded the mandates of § 703(g) of the Civil Rights Act of 1964, and therefore, being invalid. The sixth circuit court of appeals agreed with the challengers in the case of Dewey v Reynolds Metals Co, 429 F2d 324, 334-5 (CA 6, 1970). There, the court held that religious discrimination could not be equated with a duty to accommodate. The court stated:

"Nowhere in the legislative history of the Act do we find any Congressional intent to coerce or compel one person to accede to or accommodate the religious beliefs of another. The requirement of accommodation to religious beliefs is contained only in the EEOC Regulations, which in our judgment are not consistent with the act.” 429 F2d at 334.

The United States Supreme Court affirmed the Dewey decision by an equally divided vote. Dewey v Reynolds Metals Co, 402 US 689; 91 S Ct 2186; 29 L Ed 2d 267 (1971). A like decision was rendered in Kettell v Johnson & Johnson, 337 F Supp 892, 895 (ED Ark, 1972).

In direct response to the Dewey decision, Congress amended Title VII of the Equal Employment Opportunity Act of 1972 (701j) to include the requirement of reasonable accommodation:

"The term 'religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 USC 2000e(j), Pub L 92-261 § 2(7) (Effective March 24, 1972).

Following this enactment, most of the Federal circuit courts passing on the question, including the sixth circuit, concluded that this subsequent congressional affirmation of the EEOC guidelines validated them. See e.g, Riley v Bendix Corp, 464 F2d 1113 (CA 5, 1972), Reid v Memphis Publishing Co, 468 F2d 346 (CA 6, 1972), Yott v North American Rockwell Corp, 501 F2d 398 (CA 9, 1974), Cummins v Parker Seal Co, 516 F2d 544 (CA 6, 1975), aff'd by equally divided court, 429 US 65; 97 S Ct 342; 50 L Ed 2d 223 (1976) and see generally Anno: Validity, Construction, and Application of Provisions of Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.) and Implementing Regulations, Making Religious Discrimination in Employment Unlawful, 22 ALR Fed 580, § 40b), 15 Am Jur 2d, Civil Rights, § 195, p 705, but see Reid v Memphis Publishing Co, 521 F2d 512 (CA 6, 1975). This interpretation was adopted by a unanimous United States Supreme Court where, after reviewing the legislative history of the religious accommodation provision, it ruled that the EEOC guidelines were

"at least sufficient in this case to warrant our accepting the guideline as a defensible construction of the pre1972 statute”. Trans World Airlines, Inc v Hardison, 432 US 63, 76, fn 11; 97 S Ct 2264; 53 L Ed 2d 113 (1977).

In the case at bar we are asked to adopt a similar construction of § 3(a) of the FEPA based on the rationale used by the Supreme Court in Hardison. This we cannot do. First, we are not presented, as was the Court in Hardison, with a situation in which the legislative body subsequently enacted legislation expanding the prohibition against religious discrimination to include a duty to make reasonable accommodations. Unlike Congress, the Michigan Legislature remained silent following the 1970 decision in Dewey and the Supreme Court’s affirmance, by a split decision, in 1975. Therefore, in the absence of any clear legislative interpretation that the term "discrimination” in the FEPA included a duty to make reasonable accommodations, we rule that such a construction goes beyond the legislative mandate set forth in § 3(a) of the FEPA.

Second, not only did the Legislature fail to enact positive legislation addressing the issue of religious accommodation but, on three occasions, when it had the opportunity to so amend the statute, it chose not to. 1972 PA 267, effective October 5, 1972, amended the title and added § 3a (not to be confused with § 3[a]) dealing with age and sex discrimination. In 1975 PA 332, effective January 12, 1976, the title was again amended and § 3 amended to preclude the use of arrest records in employment practices. 1976 PA 52, effective March 22, 1976, again amended the title and § 3(a) of the FEPA to prohibit discrimination on the basis of height, weight or marital status. None of the three amendments, all enacted after the adoption of defendant commission’s interpretive guidelines, dealt with the religious accommodation issue.

A third reason we cannot by judicial ruling write into the FEPA a duty to accommodate is the long-standing reluctance of this Court and the sixth circuit court of appeals to find affirmative duties in a general ban on discrimination. In Dewey, supra, the sixth circuit court of appeals said:

"The fundamental error of Dewey and the Amici Curiae is that they equate religious discrimination with failure to accommodate. We submit these two concepts are entirely different. The employer ought not to be forced to accommodate each of the varying religious beliefs and practices of his employees.” Dewey, supra, at 335.

On two occasions this Court has declined to find affirmative duties mandated within a statute which forbids "discrimination”. In Civil Rights Comm v Chrysler, supra, we held that unless there was a showing that failure to provide special training constituted dissimilar treatment, § 3 of the FEPA did not mandate that the employer provide such special training. More recently, in Dady v Rochester School Board, 90 Mich App 381; 282 NW2d 328 (1979), this Court examined the nondiscrimination provisions of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Elliott-Larsen Civil Rights Act. Despite more specific language as to affirmative duties in the Handicappers Act than in the Civil Rights Act, the Court held that, while the statute prohibited a school from discriminating against handicapped children, the statute did not include the obligation to provide a medical service without which the child could not attend the special education program. See also, Highland Park v Fair Employment Practices Comm, 364 Mich 508, 513-514; 111 NW2d 797 (1961).

The Department of Civil Rights vigorously argues that because the Legislature, being well aware of the commission’s "interpretive guidelines” extant since September 26, 1972, did not write an accommodation requirement into the comparable section of the Elliott-Larsen Act, which repealed and replaced the FEPA, such fact evidences legislative acquiescence in the longstanding interpretive guideline. It is further argued that repeated legislative enactment in substantially identical terms of legislation which has been subject to long-standing judicial or administrative interpretation indicates approval of the administrative interpretation. In re Martiny Lakes Project, 381 Mich 180, 195; 160 NW2d 909 (1968), Magreta v Ambassador Steel Co, 380 Mich 513, 519-520; 158 NW2d 473 (1968).

The flaw in the above argument is that while such may have been true in 1977, when Elliott-Larsen was enacted, it certainly was not true in October, 1972, when claimant’s employment was terminated. The guidelines were not in effect when claimant refused to work on Friday, September 22, 1972, and had only been in effect for 3 and 10 days respectively when claimant missed work on the following two Fridays. Further, the controlling law at that time was the sixth circuit’s opinion in Dewey, supra, which was decided June 4, 1970, and affirmed by the Supreme Court June 1, 1971. Hardison, supra, was not decided until June 16, 1977. Thus none of the four main factors upon which the courts rely to give authoritative effect to interpretive rules are present here. They include:

"* * * special expertise of the agency combined with lack of expertise of the court, reenactment of the statute in circumstances which indicate legislative approval of the rules, contemporaneous construction (interpretations at the time of the enactment by administrators who were especially informed of the legislative intent), and longstanding rules.” Davis, Administrative Law Text (3d ed), p 127.

The controlling legislative intent is that which pertained at the time the alleged offense occurred, rather than the legislative intent as of the date of a subsequent enactment. Detroit Edison Co v Dep’t of Revenue, 320 Mich 506, 519; 31 NW2d 809 (1948), Iron Street Corp v Unemployment Compensation Comm, 305 Mich 643, 655; 9 NW2d 874 (1943), see generally, 21 Michigan Law & Practice, Statutes, § 97, p 108. Accordingly, we hold that proscription in the FEPA not to discriminate as to religion did not include a duty to accommodate.

This holding does not extend to situations involving violations occurring under the Elliott-Larsen Civil Rights Act. When that statute was enacted January 13, 1977, the interpretive guideline had been in effect for more than four years. Obviously, a stronger case for the application of the acquiescence in administrative interpretation rule, as laid down in Magreta, exists under the Elliott-Larsen statute than under the repealed FEPA. However, strong arguments can be advanced for a contrary interpretation, and therefore we do not decide the issue but leave it for future decision under the applicable statute.

Conclusion

In light of the various considerations discussed above, we conclude that the FEPA did not impose an obligation on the employer to make affirmative accommodations to conform to the employee’s religious needs. Our resolution of this question makes it unnecessary to consider the other issues raised by both parties on appeal. The decision of the circuit court reversing the order of the Civil Rights Commission is affirmed. All charges brought against the respondent herein are dismissed. Const 1963, art 6, § 28, MCL 24.306; MSA 3.560(206), Dixon v Ford Motor Co, 402 Mich 315; 262 NW2d 666 (1978).

No costs, a public question being involved.

       The FEPA was repealed upon passage of the Elliott-Larsen Civil Rights Act, 1976 PA 453, effective March 31, 1977, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Claimant, Mary Parks, was discharged while the FEPA was in effect. Therefore that statute and not the Elliott-Larsen Act governs. Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 372, fn 1; 263 NW2d 376 (1977).

       Amendments prohibiting employment discrimination on the basis of age or sex were enacted in 1965 and 1966 respectively. 1965 PA 344, 1966 PA 349.

       In pertinent part, § 202(1) of the new civil rights statute states:
      "An employer shall not:
      "(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
      "(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.” MCL 37.2202(l)(a), (b); MSA 3.548(202)(l)(a), (b).

       CCH, Employment Practices Guide, ¶[ 24,235, pp 8635-5 through 8635-7; BNA, Labor Relations Reporter, Fair Employment Practices Manual, § 455-1091.

       Of course, we recognize that if the language of a statute is ambiguous, the interpretation given to it by the administrative agency charged with carrying out the will of the Legislature is entitled to careful consideration by the courts, but such administrative interpretation is not binding on the courts and must be rejected if not in accord with the intention of the Legislature. Consumers Power Co v Corporation & Securities Comm, 326 Mich 643; 40 NW2d 756 (1950). See generally, 22 Callaghan, Michigan Civil Jurisprudence, Statutes, § 141; 21 Michigan Law & Practice, Statutes, § 89, p 93, text at fn 13.

       The 1972 amendment to Title VII of the Equal Employment Opportunity Act of 1972 was initiated to address the questions raised in Dewey. Senator Jennings Randolph, a sponsor of the amendment, made reference to the Supreme Court’s equally divided decision in Dewey and then stated:
      "This amendment is intended in good purpose to resolve by legislation—and in a way I think was originally intended by the Civil Rights Act—that which the courts apparently have not resolved.” 118 Cong Rec 704-713, 7167 (1972). See 4 Larsen, Employment Discrimination, § 92.10 (1978).

       See footnote 1, supra.

       While the Legislature expressly required accommodation by employers when it enacted the Handicappers’ Civil Rights Act, 1976 PA 220, effective March 31, 1977, MCL 37.1101 et seq.; MSA 3.550(101) et seq., it failed to include an accommodation provision when it enacted the Elliott-Larsen act in January, 1977. Since both acts carried the same effective date, and the one contained an express provision and the other did not, it can be argued that the Legislature intentionally declined to write into the statute the obligation to accommodate.


author: D. E. Holbrook, J.

text:
    PEOPLE v RIDER
    Docket No. 78-2017.
    Submitted June 15, 1979, at Lansing.
    Decided November 5, 1979.
    Anthony Rider and his codefendant Theodore Dudley were charged with receiving or concealing stolen property with a value in excess of $100. Defendants were to be tried jointly in a bench trial in Recorder’s Court for the City of Detroit, Joseph A. Gillis, J. At the commencement of trial, Judge Gillis accepted Dudley’s plea of guilty. Rider, represented by different counsel, proceeded to trial before Judge Gillis. He was convicted and sentenced. Defendant appeals, claiming that the trial judge denied him his right to an impartial trier of fact when he did not disqualify himself sua sponte from conducting a bench trial after accepting Dudley’s plea of guilty implicating Rider in the offense. On the first day of trial the following colloquy between court and counsel was recorded:
    "The Court: Is Mr. Dudley going to testify in this trial?
    "Mr. La Bret [prosecutor]: No. He’s not endorsed, your Honor. I can’t endorse him at this stage of the game.
    "The Court: You can call him.
    "Mr. La Bret: All right, I’ll call Mr. Dudley.”
    Defendant claims error in the manner that Dudley was called as a witness. Held:

    1. Absent a showing of actual prejudice or bias, a defendant is not denied his right to an impartial trier of fact where the trial judge did not disqualify himself sua sponte from conducting a bench trial after accepting a guilty plea of his codefendant implicating defendant in the charged offense. No prejudice or bias in fact was shown by the defendant.
    2. Dudley could not be endorsed as a witness while he was a codefendant. After he pled guilty he became an accomplice and could be called. The judge’s question was not a request for Dudley to be called but merely an inquiry as to whether he would be called. When the prosecutor said it was too late to call Dudley, it was an obvious error, which the trial judge corrected. The judge’s action could help to present all the evidence in the case to the end that justice might be done. A judge is charged by law and conscience with the fundamental duty of seeing that truth is established and justice done under the statutes and rules of law designed to bring about such result. The action of the trial judge does not constitute reversible error.

      References for Points in Headnotes
    [1] 46 Am Jur 2d, Judges §§ 166, 167, 180, 181, 199, 219, 220.
    [2, 3] 75 Am Jur 2d, Trial § 30. 76 Am Jur 2d, Trial § 1239.

      3. The trial court did not deviate from the trial record to convict the defendant. The evidence presented at trial was more than ample to convict defendant beyond a reasonable doubt.
    Affirmed.
    1. Criminal Law — Nonjury Trial — Disqualification of Judges — Prejudice or Bias — Proof — Plea of Codefendant — Fair Trial.
    A trial judge has the right to hear a case to its conclusion absent a showing of prejudice or bias; where prejudice or bias is the reason alleged for disqualifying a judge, there must be prejudice or bias in fact; unless there is prejudice or bias, disqualification should never be based upon' a decision in the due course of judicial proceedings; absent actual prejudice or bias, a defendant is not denied his right to an impartial trier of fact where the trial judge did not disqualify himself sua sponte from conducting a bench trial of the defendant after accepting a guilty plea of his codefendant implicating defendant in the charged offense.
    2. Trial — Judges — Control of Trial — Statutes and Rules — Justice — Adjudication on Merits.
    A trial judge’s control should be manifest and complete at all times; therefore, he should not be restricted to the function of a mere umpire or referee in a contest between opposing parties or counsel, but is charged by law and conscience with the fundamental duty of seeing that truth is established and justice done under the statutes and rules of law designed to bring about such result, and he should, accordingly, see to it, whenever possible without doing violence to rules of practice and procedure, that cases are heard and disposed of on their merits, and, if consistent with the orderly administration of justice, that procedure should be favored which will result in a determination of the merits of the case.
    3. Judges — Trial — Criminal Law — Protection of Rights — Public Responsibility — Justice.
    The presiding judge, in a criminal case, not only has the responsibility of protecting the rights of one accused of crime but also an equal responsibility to the people of the state to the end that justice is not thwarted by mistake or inadvertence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.

      Sidney Kraizman, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, J.

Defendant Anthony Rider and codefendant Theodore Dudley were charged under MCL 750.535; MSA 28.803, with receiving or aiding in the concealment of property valued over $100 knowing it to have been stolen. The defendants were to be tried jointly in a bench trial in the Recorder’s Court for the City of Detroit. At the commencement of trial, February 1, 1978, Dudley pled guilty. Defendant Rider, represented by different counsel, proceeded to trial before the same judge and on February 3, 1978, was convicted, and sentenced the same day to a term of 1 to 5 years in prison to run consecutively with another sentence. He appeals as of right.

Two witnesses from Lockmoor Chrysler-Plymouth, of 18165 Mack Avenue, in Detroit, stated that a red Cadillac valued at over $100 was taken off their lot on July 26, 1977. This was the same red Cadillac recovered in a stripped condition after the arrest of the defendants. Sergeant Ronald Sanders of the Detroit Police Department testified for the people that he was on routine patrol on Chicago Avenue, at Carlin Avenue, at approximately 2 a.m., July 27, 1977, when he saw defendant Rider driving a white Cadillac towing the stripped red Cadillac. A man was in the red Cadillac which was also being pushed by defendant Dudley driving a Pontiac. The witness said he made a U-turn and saw the white Cadillac make a right turn on Chicago, breaking loose from the red Cadillac. Sgt. Sanders took off in pursuit of Dudley. Although Dudley was able to elude the officer by running from his car, the officer obtained Dudley’s identification and the police were able to arrest him the next day.

Another officer, Ronald Atkinson, arrested Rider as he pulled into a hamburger stand 1-1/2 blocks from Chicago and Carlin.

As the prosecution was ready to close its case, the court inquired whether Dudley was going to testify. The prosecutor replied that he had not intended to call him and that he was not endorsed. The court stated he could testify, whereupon the prosecutor called him to the stand. Dudley testified that he and a man named Henry Jackson stole the car on July 25 and they left the car at their home on Carlin that nite. During the next afternoon, Rider, Jackson and he began taking all the parts off the car, that Rider took the steering box, steering column, power steering pump, AM-FM 8-track stereo and head lights for his 1975 Cadillac. At about 1:30 a.m. of the 27th the men decided to get rid of the red Cadillac, which was by now an empty shell. He stated that he pushed the car with his Pontiac, but that it was not towed by the lead car. He said the red car parts would be found in Rider’s yellow Cadillac.

Defendant Rider testified that he had no part in the matter, that he awoke on the morning of the 27th after returning home from work and saw the red Cadillac in the yard where he lived with Dudley and another person (Leroy Hudson), and that he saw Dudley and Jackson working on the car about 5 p.m. His fiancée woke him about 2 a.m. and asked him to get her a hamburger. He asked Hudson to drive him to the restaurant in his white Cadillac. At Chicago and Carlin they spotted a police car and Hudson asked him to drive because he did not have a driver’s license. After the exchange Rider said Hudson jumped out of the car and he continued on to the restaurant where he was arrested. Rider’s fiancée testified that Rider was with her from 9:30 p.m. to 2 a.m., also that Rider’s car still had the original parts in it.

Defendant’s counsel then requested an adjournment to get the yellow Cadillac down to the court and to have Hudson come in and testify for the defendant.

The trial court agreed to have the adjournment to the next morning. Hudson appeared but testified that Rider worked on the red car and that the red car parts were placed in Rider’s car and the yellow steering column from Rider’s car was placed in the red car. He also testified that he and Rider drove the lead car to watch out for police cars and although they did not tow the stripped car it travelled closely behind them.

Another witness testified that Rider’s car still had its original parts in it when she drove it in August.

Defendant’s fiancée testified that the defendant’s Cadillac was being towed down to the court house that morning.

Defendant’s counsel asked for an additional delay preceding its arrival. This was denied by the court.

After hearing oral argument from both counsel the trial court found defendant guilty.

Defendant claims that the trial court denied the defendant his right to an impartial trier of fact when it did not disqualify itself sua sponte from conducting a bench trial of the defendant after accepting a guilty plea of his codefendant, Dudley, that implicated him in the offense.

We disagree with the defendant. With a very similar fact situation in the case of People v Chesbro, 300 Mich 720; 2 NW2d 895 (1942), our Supreme Court ruled that where prejudice or bias is the reason alleged for disqualifying a judge, there must be prejudice or bias in fact, and it can never be based solely upon a decision in the due course of judicial proceedings. We find no prejudice or bias in fact has been shown by the defendant.

Defendant also claims error in the manner that Dudley was called as a witness as follows:

"THE COURT: Is Mr. Dudley going to testify in this trial?
"MR. LA BRET [prosecutor]: No. He’s not endorsed, your Honor. I can’t endorse him at this stage of the game.
"THE COURT: You can call him.
"MR. LA BRET: All right, I’ll call Mr. Dudley.”

Mr. Dudley’s testimony implicated the defendant as did defendant’s own witness, Hudson. There was no objection by defendant to witness Dudley testifying. It must have been obvious to the prosecutor that while Dudley was a codefendant he could not be endorsed as a witness. However, when he pled guilty he became an accomplice and eligible to be called as a witness, subject to the rule that he could not be cross-examined by the prosecutor. The question by the judge to the prosecutor was not a request for Dudley to be called as a witness, but merely an inquiry as to whether he would be called. When the prosecutor said it was too late to call Dudley, it was an obvious error, which the trial judge corrected. This all happened on the first day of the trial shortly after Dudley became a possible witness.

We now consider the question of whether the trial judge’s action in this regard constitutes prejudicial error.

We first turn to 88 CJS, Trial, § 36, pp 93-94, wherein it is stated:

"The judge is not to be restricted to the functions of a mere umpire or referee in a contest between opposing parties or counsel, but is charged by law and conscience with the fundamental duty of seeing that truth is established and justice done, under the statutes and rules of law designed to bring about such result, and his control of the situation should be manifest and complete at all times. He should, accordingly, see to it, whenever possible without doing violence to rules of practice and procedure, that cases are heard and disposed of on their merits, and, if consistent with the orderly administration of justice, that procedure should be favored which will result in a determination of the merits of the case.”

We now turn to the case of State v Burbank, 156 Me 269, 278; 163 A2d 639 (1960), for further light on the subject issue, wherein it is stated:

"We are fully aware of and recognize the rights of a respondent in a criminal prosecution. A justice presiding in a criminal case not only has the responsibility of protecting the rights of one accused of crime but also an equal responsibility to the people of the State to the end that justice is not thwarted by mistake or inadvertence.”

In the case of People v Ciatti, 17 Mich App 4, 9; 168 NW2d 902 (1969), this Court ruled that it was not error for the trial judge at the close of the people’s case to inquire whether the prosecution desired to show certain exhibits to the jury.

We are satisfied that the trial judge in this instance merely called to the attention of the prosecutor the name of a possible witness, who might help to present all the evidence in the case, to the end that justice might be done. This action of the trial judge does not constitute reversible error.

We further note that the trial court did not deviate from the trial record to convict the defendant. The evidence presented at the trial was more than ample to convict defendant beyond a reasonable doubt. Other claimed errors by defendant are not sustained by the record.

Affirmed.


author: T. M. Burns, J.

text:
    SULLIVAN v PUBLIC SERVICE COMMISSION
    Docket No. 78-2398.
    Submitted June 13, 1979, at Detroit.
    Decided November 5, 1979.
    Leave to appeal applied for.
    R. J. Sullivan, doing business as Sullivan and Company, produces natural gas from wells in St. Clair County. The sole purchaser of the gas is Michigan Consolidated Gas Company. A purchase price was set by the parties in 1974 in a one-year contract which was approved by the Public Service Commission. The parties have not agreed on a new contract, but Michigan Consolidated continues to purchase gas from Sullivan at the contract price. Sullivan filed a complaint with the Public Service Commission, alleging that Michigan Consolidated discriminates against Sullivan in the purchase price of the gas, in violation of a statute controlling and regulating gas pipelines. The commission dismissed the complaint, finding that Michigan Consolidated did not discriminate. Fifty-eight days later Sullivan brought a petition for review in Ingham Circuit Court under the Administrative Procedures Act. The court, Michael G. Harrison, J., granted accelerated judgment to the commission and to Michigan Consolidated on the grounds that the court had no jurisdiction because the order was not subject to review under the APA, but was appealable only by statutory appeal, within 30 days. Sullivan appeals. Held:

    1. Orders of the Public Service Commission are appealable under a section of the Railroad Commission Act and appeals are required to be filed within the 30-day period specified within that section. An appeal pursuant to that section is a "special statutory review proceeding” within the meaning of the Administrative Procedures Act; therefore, .the appeal provisions of the APA are not applicable. Sullivan’s appeal to circuit court was not timely.
    2. The commission’s order does involve a "rate” within the context of the statute governing appeals, and the statute therefore applies.
    3. There is no apparent legislative intention that only orders of public significance or public importance are included in the statutory appellate remedy.

      References for Points in Headnotes
    [1, 2] 1 Am Jur 2d, Administrative Law §§ 129, 130, 181.

      Affirmed.
    1. Administrative Law — Public Service Commission — Appeal of Order — Statutes.
    An order of the Public Service Commission is appealable to Ingham Circuit Court within 30 days of the order, pursuant to statute; the 60-day appeal period allowed by the Administrative Procedures Act is not applicable where an administrative order is subject to any "special statutory review proceeding” (MCL 24.302, 460.4, 462.26; MSA 3.560[202], 22.13[4], 22.45).
    2. Public Service Commission — Rates — Statutes.
    A "rate”, for the purpose of a statute controlling the appeal of an order of the Public Service Commission, can refer to the price of a commodity or service regulated by the Public Service Commission whether set "administratively”, by the contract between the parties, or "legislatively”, by the Legislature or its authorized agency, and whether or not the price directly affects the public at large (MCL 462.26; MSA 22.45).

      J. Andrew Domagalski, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Walter V. Kron and Arthur E. D’Hondt, Assistants Attorney General, for the Michigan Public Service Commission.

      Alex H. Terzian, III, for Michigan Consolidated Gas Company.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   T. M. Burns, J.

This is an appeal as of right by Sullivan and Company (Sullivan) from an accelerated judgment, entered by the Ingham County Circuit Court, which dismissed its appeal under the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq., from an order of the Michigan Public Service Commission.

Sullivan is an oil and gas producer operating in Michigan and in other states. It produces gas from two of eight wells in the Big Hand Field located in Columbia Township, St. Clair County, Michigan. Michigan Consolidated Gas Co. operates four of the wells and is the sole purchaser of gas from Sullivan since 1971, under a three-year contract. On March 4, 1974, Michigan Consolidated entered into a one-year contract to purchase gas from Sullivan at a price of 56 cents per Mcf. The Commission approved that contract by order entered January 6, 1975. In the meantime, the parties were unable to agree on a new contract, Sullivan demanding a higher price per Mcf and the utility demanding substantial additional consideration. Although the parties did not agree on a new contract, Michigan Consolidated continues to purchase Sullivan’s gas at the former price of 56 cents per Mcf.

On November 24, 1975, Sullivan filed a complaint with the Commission, alleging that Michigan Consolidated was discriminating against it in the purchase price of gas, allegedly in violation of § 4 of 1929 PA 9, an act controlling and regulating gas pipelines, MCL 483.101 et seq.; MSA 22.1311 et seq. Sullivan claimed that the utility was deliberately pursuing a course of conduct to maintain the price of gas purchased from it at a depressed level. The Commission heard Sullivan’s complaint and dismissed it by order entered March 28, 1977. The Commission held that Michigan Consolidated did not discriminate against Sullivan "in price or amount for like grades of natural gas as between producers or persons or in favor of its own production” because, inter alia, "all other producers in the Big Hand Field are presently paid the same price for natural gas as is Complainant”.

Fifty-eight days later, Sullivan sought judicial review of that order in Ingham County Circuit Court by petition for review under Chapter 6 of the Administrative Procedures Act of 1969. The Commission and Michigan Consolidated responded with motions for accelerated judgment on the grounds that the circuit court lacked jurisdiction over the appeal because the Commission’s order was appealable by statutory appeal filed within 30 days and was not subject to review under the APA. After briefing and oral arguments on the question, the circuit court agreed by opinion entered January 13, 1978, and accelerated judgment was entered on June 2, 1978.

On appeal, Sullivan contends that its appeal under the APA, taken within the 60-day period allowed by § 104, was timely and proper because the Commission order appealed was not subject to (in the words of APA § 102) "any applicable special statutory review proceeding in any court specified by statute * * *”. MCL 24.302; MSA 3.560(202). Appellees contend that the order is reviewable only under § 26 of the railroad commission act (1909 PA 300) and only within the 30-day period specified in § 26. MCL 462.26; MSA 22.45. Appellees argue that Sullivan is directed to the § 26 remedy not only by the railroad commission act itself, but also by § 4 of the public service commission act (1939 PA 3), MCL 460.4; MSA 22.13(4), and by § 10 of the gas pipelines act under which Sullivan brought its discrimination complaint against the utility. MCL 483.110; MSA 22.1320.

Section 4 of the Public Service Commission Act provides in pertinent part:

"Any order or decree of the public service commission shall be subject to review in the manner now provided by law for reviewing orders and decrees of the Michigan railroad commission or the Michigan public utilities commission.” MCL 460.4; MSA 22.13(4).

Orders of the former Michigan Railroad Commission and Michigan Public Utilities Commission were reviewable under § 26 of the railroad commission act. See MCL 460.53; MSA 22.3; MCL 462.26; MSA 22.45. It follows that orders of the current agency, the Public Service Commission, are appealable under § 26. Accordingly, we hold that § 26 is a "special statutory review proceeding” within the meaning of APA § 102. Sullivan’s appeal was required to be filed under § 26 and within the 30-day period specified in that section. Accord, Consumers Power Co v Public Service Comm, 88 Mich App 633; 278 NW2d 702 (1979), Michigan Gas Utilities Co v Public Service Comm, 27 Mich App 411; 183 NW2d 619 (1970), Michigan Towing Ass’n, Inc v Public Service Comm, 15 Mich App 525; 166 NW2d 608 (1969).

Sullivan argues that § 26 is inapplicable because the Commission’s order does not fix a "rate”, as the word is defined in cases, because this controversy does not affect the public at large and because it is not significant enough to warrant the precedence § 26 gives to Commission appeals in circuit court. We reject the arguments.

It is true that the word "rate” generally refers to the price fixed for some commodity or service of general need or utility which is furnished to the public at large. Detroit v Public Utilities Comm, 288 Mich 267, 284; 286 NW 368 (1939), Lenawee County Gas & Electric Co v City of Adrian, 209 Mich 52, 58; 176 NW 590 (1920). However, "rate” means simply "price”. In the context of § 26, "rate” can refer to the price of a commodity or service regulated by the Public Service Commission—whether set "administratively” or "legislatively” (see Detroit v Public Utilities Comm, supra) and whether directly affecting the public at large or not.

It may be true, as Sullivan contends, that this controversy does not require the priority hearing afforded by § 26. But it does not follow that the controversy therefore is not within § 26. Both § 4 of the public service commission act and § 26 of the railroad commission act use the phrase "any order” when referring Commission appeals to the Ingham County Circuit Court. There is no legislative intention apparent in the acts that only orders of public significance or public importance are included in the appellate remedy provided by § 26.

Moreover, it is clear from the entire statutory scheme of Public Service Commission matters that the Legislature intended nearly all Commission orders to be appealed under § 26. In addition to § 4 of the public service commission act and § 26 of the railroad commission act, the following statutes incorporate or duplicate the appellate remedy of § 26: § 5 of the water carriers act, MCL 460.201 et seq.; MSA 22.91 et seq.; § 6 of the act regarding certificates of convenience and necessity for new gas or electric projects, MCL 460.501 et seq.; MSA 22.141 et seq.; § 7 of the act regulating transmission of electricity through highways, MCL 460.551 et seq.; MSA 22.151 et seq.; art v, § 20 of the Motor Carrier Act, MCL 475.1 et seq.; MSA 22.531 et seq.; § 3 of the act governing abandonment of tracks, MCL 469.241 et seq.; MSA 22.611 et seq.; § 4 of the act regulating passenger rates for electric interurban railroads, MCL 468.31 et seq.; MSA 22.981 et seq.; § 10 of the act regulating gas lines, MCL 483.101 et seq.; MSA 22.1311 et seq.; § 14 of the act regulating telephone companies as common carriers, MCL 484.101 et seq.; MSA 22.1441 et seq., and § 20 of the act regulating water companies, MCL 486.551 et seq.; MSA 22.1730(1) et seq.

We do agree with Sullivan that § 10 of 1929 PA 9, under which it brought its discrimination complaint against the utility, is not, as to Sullivan, a "special statutory review proceeding”. Section 10 provides in pertinent part:

"Thereafter a going common purchaser or common carrier of natural gas may alter or amend its price paid, rates, charges and conditions of service by application to and approval by the commission in the same manner and by the same process and under the same legal limitations and like right and process of appeal as are now provided by statute for the regulation by the commission of the rates for electricity transmitted in this state.”

That section refers to the statute regulating rates for electricity which is 1909 PA 106, MCL 460.551 et seq.; MSA 22.151 et seq. Section 7 of 1909 PA 106 incorporates the appellate remedy of the railroad commission act, namely, § 26. MCL 460.557; MSA 22.157. However, § 10 of 1929 PA 9 and its incorporation of the appellate remedy of § 26 is applicable by its plain terms only to a common purchaser or common carrier which applies for a change in rates. Section 10 does not refer to a producer’s discrimination complaint under § 4 of 1929 PA 9. Accordingly we hold that § 10 is not, as to Sullivan, a "special statutory review proceeding” within the meaning of APA §102.

The judgment of the circuit court is affirmed. No costs, a public question being involved.

       We cannot but express some disapproval in a situation whereby parties wishing to appeal an order of the Public Service Commission must wade through a maze of statutes to discover that the applicable statute of limitations governing their appeal is a bare 30-day period. To avoid the potential for confusion and unfairness to prospective appellants, and to better effectuate the duty of the Public Service Commission to serve the citizens of this state, the Commission should adopt a practice of stating in its orders the applicable time period for perfecting an appeal. This practice is done in the workmen’s compensation area where a hearing referee’s award bears a printed legend clearly stating the applicable time period governing appeals of the referee’s decision to the Workmen’s Compensation Appeal Board. See, Bureau of Workmen’s Compensation Form 200. It is also done in the criminal law area where the court rules require every criminal defendant to be informed orally and in writing of the time limit within which the defendant must request appointment of counsel to pursue post-conviction motions and/or to perfect an appeal. GCR 1963, 785.11. Adoption of a similar practice by the Public Service Commission would eliminate future appeals similar to the instant one.


author: D. E. Holbrook, Jr., J.

text:
    BEAVER v AUTO-OWNERS INSURANCE COMPANY, INC
    Docket No. 78-3727.
    Submitted June 5, 1979, at Grand Rapids.
    Decided November 5, 1979.
    Leave to appeal applied for.
    Russell C. Beaver was injured in a one-car automobile accident. He maintained two policies of no-fault insurance, one with Aetna Insurance Company and one with Auto-Owners Insurance Company, Inc. He received personal protection benefits from Aetna in the full amount to which he was entitled, that amount being less than the limits of the policy. He then applied to Auto-Owners, seeking to recover a similar sum. Auto-Owners refused the claim and Beaver brought an action in the Otsego Circuit Court for payment of the claim. William A. Porter, J., granted Auto-Owners’ motion for summary judgment and Beaver appeals. Held:

    The intent of the Legislature was to limit a plaintiff such as this, whose injuries are compensable by an amount less than the policy limits, to one recovery regardless of the number of insurance policies issued.
    Affirmed.
    1. Statutes — Construction — Legislative Intent.
    The words of a statute should be construed in light of the Legislative intent in enacting the statute.
    2. Insurance — Automobiles — No-Fault Insurance — Statutes.
    A provision of the no-fault automobile insurance statute which states that a limit shall be placed upon the amount of personal protection benefits available to an insured regardless of the number of insurance policies applicable precludes a person who is insured under two policies from recovering under the second policy after having been fully compensated for his injury under the first policy (MCL 500.3115[3]; MSA 24.13115[3]).
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes § 145.
    [2] New Topic Service, No-Fault Insurance §§ 1, 21, 22.

      Rensberry & Foster, P.C. (by Robert K. Kaufman), for plaintiff.

      Dreyer & DuBois, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr., and B. D. Burdick, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, Jr., J.

Plaintiff appeals as of right from a circuit court order granting defendant’s motion for summary judgment, pursuant to GCR 1963, 117.2(1), for failure to state a claim upon which relief may be granted.

In January of 1975 plaintiff was injured in a one-car motor vehicle accident. He maintained, at his own expense, two policies of no-fault insurance. One policy was with Aetna Insurance Company and the other was with defendant. After receiving all the personal protection insurance benefits to which he was entitled from Aetna, plaintiff filed a second claim with defendant for a matching sum. The defendant refused the claim on the basis that plaintiff had already collected.

The issue is whether the no-fault act precludes the plaintiff full recovery upon each of two insurance policies for a single loss. MCL 500.3115(3); MSA 24.13115(3) states:

"A limit upon the amount of personal protection insurance benefits available because of accidental bodily injury to 1 person arising from 1 motor vehicle accident shall be determined without regard to the number of policies applicable to the accident.” (Emphasis supplied.)

The trial court interpreted this section to preclude multiple recoveries and in its opinion stated:

"To the extent that plaintiff has received personal protection insurance benefits from Aetna Insurance Company, he may not receive and is not entitled to recover from Auto-Owners Insurance Company.”

Defendant’s position is that the section prohibits multiple recovery. In addition, other provisions of the no-fault act make it clear that the intent was to make a person whole for his economic losses, not to compensate beyond those losses. Plaintiff contends that there is no express prohibition and the situation is not provided for under the no-fault statute. He paid two premiums and now claims he is entitled to two performances under basic contract law.

This is a case of first impression, as the courts have not previously dealt with the interpretation of this statute in this context. We agree with defendant and the circuit court that the no-fault act precludes recovery from both insurance companies in a situation such as we have here, i.e., when the amount of injuries sustained is less than the policy limits. Moreover, by the use of the words "A limit” it is patently clear to us that the Legislature intended to limit plaintiff here to but one recovery regardless of the number of policies issued. This construction of the statute is consistent with the balance of the no-fault act.

O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979), indicates that one of the basic purposes of the no-fault act is to prevent multiple recoveries which would result in windfall profits to insureds. O’Donnell involved the legislative judgment that recipients of no-fault insurance benefits are to be subject to a set-off of Federal social security survivor’s benefits. Persons with economic needs or wages exceeding the maximum benefit allowable under no-fault insurance law are permitted to obtain private supplemental coverage. The Court stated that one of the most important principles of statutory interpretation is that the words of the statute should be construed in light of the legislative intent. Elimination of duplicate benefits promotes the valid legislative objectives of attempting to reduce or contain the cost of no-fault insurance.

Plaintiff in the instant case is not seeking to collect under a separate private policy with extra coverage. He is attempting to collect double under two no-fault insurance policies. Aetna paid no-fault benefits in the amount of $19,970.63. After a deduction for property damage not covered by the defendant’s policy, plaintiff claims another $18,410.80 due and owing from defendant for the identical personal protection insurance benefits already paid by Aetna. This Court will not compensate plaintiff beyond his losses. The purpose of no-fault is to prevent the very sort of windfall profit that plaintiff attempts to obtain.

No-fault is a compulsory insurance. Therefore it is important that the premiums be maintained as low as possible while still allowing adequate coverage to reimburse the insured for losses sustained. There is a public policy argument against allowing duplicate recoveries by the insured in this type of situation.

In O’Donnell, supra at 551-552, the Court held:

"In the case at bar, the Legislature has statutorily declared that the public policy of this state now favors certain set-offs. We have no authority to invalidate that legislative decision so long as it is supported by some rational basis.”

In holding as we do, we do not rule out the possibility of similarly situated plaintiffs from recovering under both policies if the injuries are in excess of the policy limits.

While it does not seem equitable that defendant be allowed to retain premiums unless it indemnifies Aetna for a pro rata share of the loss, this is not at issue here and we need not address it.

Affirmed. No costs, interpretation of a statute involved.